[Federal Register Volume 75, Number 110 (Wednesday, June 9, 2010)]
[Notices]
[Pages 32773-32778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13880]



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FEDERAL COMMUNICATIONS COMMISSION

[AU Docket No. 10-107; DA 10-849]


Auction of 218-219 MHz Service and Phase II 220 MHz Service 
Licenses Scheduled for December 7, 2010; Comment Sought on Competitive 
Bidding Procedures for Auction 89

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document announces the auction of certain 218-219 MHz and 
Phase II 220 MHz Services licenses scheduled to commence on December 7, 
2010 (Auction 89). This document also seeks comments on competitive 
bidding procedures for Auction 89.

DATES: Comments are due on or before June 15, 2010, and reply comments 
are due on or before June 29, 2010.

ADDRESSES: You may submit comments, identified by AU Docket No. 10-107, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     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. All filings must be 
addressed to the Commission's Secretary, Attn: WTB/ASAD, Office of the 
Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St., SW., Room TW-A325, Washington, DC 20554. All hand 
deliveries must be held together with rubber bands or fasteners. Any 
envelopes must be disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or telephone: 202-
418-0530 or TTY: 202-418-0432.
     The Wireless Telecommunications Bureau requests that a 
copy of all comments and reply comments be submitted electronically to 
the following address: [email protected].
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.

FOR FURTHER INFORMATION CONTACT: Wireless Telecommunications Bureau, 
Auctions and Spectrum Access Division: For auction legal questions: 
Sayuri Rajapakse at (202) 418-0660; for general auction questions: 
Debbie Smith or Lisa Stover at (717) 338-2868. Mobility Division: for 
service rules questions: Michael Connelly (legal) or Melvin Spann 
(technical) at (202) 418-0620.

SUPPLEMENTARY INFORMATION: This is a summary of the Auction 89 Comment 
Public Notice released on May 24, 2010. The complete text of the 
Auction 89 Comment Public Notice, including attachments and related 
Commission documents, is 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 89 
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, fax 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, DA10-849. The Auction 89 Comment Public Notice and related 
documents also are available on the Internet at the Commission's Web 
site: http://wireless.fcc.gov/auctions/89/, or by using the search 
function for AU Docket No. 10-107 on the ECFS Web page at http://www.fcc.gov/cgb/ecfs/.

I. Introduction

    1. The Wireless Telecommunications Bureau (Bureau) announces an 
auction of 218-219 MHz Service licenses and Phase II 220 MHz Service 
licenses to commence on December 7, 2010 designated as Auction 89.

II. Licenses To Be Offered in Auction 89

    2. Auction 89 will include a total of 1,868 licenses. These include 
licenses for spectrum not previously offered at auction, licenses that 
remained unsold from a previous auction, licenses on which a winning 
bidder in a previous auction defaulted, and licenses for spectrum 
previously associated with licenses that cancelled or terminated. In a 
few cases, the available license does not cover the entire geographic 
area or bandwidth that was covered by a previously auctioned license 
due to partitioning or disaggregation by a previous licensee. 
Attachment A of the Auction 89 Comment Public Notice provides a 
complete list of the licenses that are available in Auction 89.

A. License Descriptions

i. 218-219 MHz Service Licenses
    3. Auction 89 will offer 1,420 licenses in the 218-219 MHz Service: 
716 A Block licenses and 704 B Block licenses covering a total of 727 
Cellular Market Areas (CMAs).
ii. Phase II 220 MHz Service Licenses
    4. Auction 89 will offer 448 Phase II 220 MHz Service licenses, 
including 444 Economic Area (EA) licenses and 4 Economic Area Grouping 
(EAG) licenses, covering a total of 154 separate EAs and EAGs.
    5. Certain licenses being offered in Auction 89 are available for 
only part of the geographic license area because some previously-
auctioned 220 MHz licenses were partitioned. In addition, four of these 
licenses available for only part of the geographic license area also 
cover less bandwidth due to previous disaggregation. The 220 MHz 
Service licenses available in this auction are listed and are more 
fully described in Attachment A of the Auction 89 Comment Public 
Notice.

B. Incumbency Issues

i. 218-219 MHz Licenses
    6. The Commission has authorized certain site-based, low power 
operations on a secondary basis in the 216-220 MHz band. There are also 
incumbent geographic area 218-219 MHz Service licenses in certain CMAs. 
Additional information on those licenses may be found through the 
Commission's Universal Licensing System (ULS), which is available at 
http://wireless.fcc.gov/uls.
ii. 220 MHz Licenses
    7. A number of incumbent Phase I (site-based) 220 MHz licensees are 
licensed and operating on frequencies between 220 and 222 MHz. Such 
Phase I incumbents must be protected from harmful interference by Phase 
II 220 MHz licensees in accordance with the Commission's rules. These 
limitations may restrict the ability of Phase II

[[Page 32774]]

geographic area licensees to use certain portions of the 
electromagnetic spectrum or provide service to certain areas in their 
geographic license areas. There are also incumbent geographic area 220 
MHz licenses in certain EAs and EAGs. Additional information on those 
licenses may be found through ULS.

III. Bureau Seeks Comment on Auction Procedures

A. Auction Design

i. Auction Format
    8. The Bureau proposes to auction all licenses included in Auction 
89 using the Commission's standard simultaneous multiple-round auction 
format. This type of auction offers every license for bid at the same 
time and consists of successive bidding rounds in which eligible 
bidders may place bids on individual licenses. Typically, bidding 
remains open on all licenses until bidding stops on every license. The 
Bureau seeks comment on this proposal.
ii. Anonymous Bidding
    9. The Bureau proposes to conduct Auction 89 using certain 
procedures for limited information disclosure, also referred to as 
anonymous bidding. Specifically, the Bureau proposes to withhold, until 
after the close of bidding, public release of (1) bidders' license 
selections on their short-form applications (FCC Form 175); (2) the 
amounts of bidders' upfront payments and bidding eligibility; and (3) 
information that may reveal the identities of bidders placing bids and 
taking other bidding-related actions.
    10. Under these proposed limited information procedures, the amount 
of every bid placed and whether a bid was withdrawn would be disclosed 
after the close of every round, but the identities of bidders placing 
or withdrawing specific bids and the net bid amounts would not be 
disclosed until after the close of the auction.
    11. Bidders would have access to additional information about their 
own bids. For example, bidders would be able to view their own level of 
eligibility, before and during the auction, through the Commission's 
Integrated Spectrum Auction System (ISAS or FCC Auction System).
    12. Moreover, for the purpose of complying with 47 CFR 1.2105(c), 
the Commission's rule prohibiting certain communications between 
applicants, applicants would be made aware of other applicants with 
which they will not be permitted to cooperate, collaborate, or 
communicate, including discussing bids or bidding strategies. 
Specifically, the Bureau would notify separately each applicant in 
Auction 89 whether applicants with short-form applications to 
participate in pending auctions, including but not limited to Auction 
89, have applied for licenses in any of the same or overlapping 
geographic areas as that applicant.
    13. After the close of bidding, bidders' license selections, 
upfront payment amounts, bidding eligibility, bids, and other bidding-
related actions would be made publicly available.
    14. The Bureau seeks comments on its proposal to implement 
anonymous bidding in Auction 89. The Bureau also seeks comment on 
alternatives to the use of anonymous bidding procedures for Auction 89. 
When the Commission proposed limited information disclosure procedures 
for the first time, it did so in response to analysis suggesting that 
under certain circumstances the competitiveness and economic efficiency 
of an SMR auction may be enhanced if such information is withheld until 
after the close of the auction. The Bureau encourages parties to 
provide information about the benefits and costs of complying with 
limited information procedures as compared with the benefits and costs 
of alternative procedures that would provide for the disclosure of more 
information on bidder identities and interests in the auction. If 
commenters believe that the Bureau should not adopt procedures to limit 
the disclosure of certain bidder-specific information until after the 
auction, they should explain their reasoning.

B. Auction Structure

i. Round Structure
    15. Auction 89 will consist of sequential bidding rounds. The 
initial bidding schedule will be announced in a public notice to be 
released at least one week before the start of the auction.
    16. The Commission will conduct Auction 89 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. The initial bidding schedule will be announced in a public 
notice to be released at least one week before the start of the 
auction.
    17. The Bureau proposes 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 Bureau may change 
the amount of time for bidding rounds, the amount of time between 
rounds, or the number of rounds per day, depending upon bidding 
activity and other factors. The Bureau seeks 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.
ii. Stopping Rule
    18. For Auction 89, the Bureau proposes to employ a simultaneous 
stopping rule approach. A simultaneous stopping rule means that all 
licenses remain available for bidding until bidding closes 
simultaneously on all licenses. More specifically, bidding will close 
simultaneously on all licenses after the first round in which no bidder 
submits any new bids, applies a proactive waiver, or withdraws any 
provisionally winning bids. Thus, unless the Bureau announces 
alternative stopping procedures, bidding will remain open on all 
licenses until bidding stops on every license. Consequently, it is not 
possible to determine in advance how long the auction will last.
    19. Further, the Bureau proposes to retain the discretion to 
exercise any of the following options during Auction 89: (1) Use a 
modified version of the simultaneous stopping rule. The modified 
stopping rule would close the auction for all licenses after the first 
round in which no bidder applies a waiver, withdraws a provisionally 
winning bid, or places any new bids on any license for which it is not 
the provisionally winning bidder. Thus, absent any other bidding 
activity, a bidder placing a new bid on a license for which it is the 
provisionally winning bidder would not keep the auction open under this 
modified stopping rule; (2) Declare that the auction will end after a 
specified number of additional rounds. If the Bureau invokes this 
special stopping rule, it will accept bids in the specified final 
round(s) after which the auction will close; and (3) Keep the auction 
open even if no bidder submits any new bids, applies a waiver, or 
withdraws any provisionally winning bids. In this event, the effect 
will be the same as if a bidder had applied a waiver. The activity 
rule, therefore, will apply as usual and a bidder with insufficient 
activity will either lose bidding eligibility or use a waiver.
    20. The Bureau proposes to exercise these options only in certain 
circumstances, for example, where the

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auction is proceeding unusually slowly or quickly, there is minimal 
overall bidding activity, or it appears likely that the auction will 
not close within a reasonable period of time or will close prematurely. 
Before exercising certain of these options, the Bureau is likely to 
attempt to change the pace of the auction by, for example, changing the 
number of bidding rounds per day and/or changing minimum acceptable 
bids. The Bureau proposes to retain the discretion to exercise any of 
these options with or without prior announcement during the auction. 
The Bureau seeks comment on these proposals.
iii. Information Relating to Auction Delay, Suspension, or Cancellation
    21. For Auction 89, the Bureau proposes that, by public notice or 
by announcement during the auction, the Bureau 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 Bureau, in its 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 Bureau to delay or suspend 
the auction. The Bureau emphasizes that exercise of this authority is 
solely within the discretion of the Bureau, and its use is not intended 
to be a substitute for situations in which bidders may wish to apply 
their activity rule waivers. The Bureau seeks comment on this proposal.

C. Auction Procedures

i. Upfront Payments and Bidding Eligibility
    22. For Auction 89, the Bureau proposes to make the upfront 
payments equal to the minimum opening bids. The specific upfront 
payments for each license are listed in Attachment A of the Auction 89 
Comment Public Notice. The Bureau seeks comment on this proposal.
    23. The Bureau further proposes that the amount of the upfront 
payment submitted by a bidder will determine the bidder's initial 
bidding eligibility in bidding units. The Bureau proposes that each 
license be assigned a specific number of bidding units equal to the 
upfront payment listed for the license, on a bidding unit per dollar 
basis. The specific bidding units for each license are listed in 
Attachment A of the Auction 89 Comment Public Notice. The number of 
bidding units for a given license is fixed and does not change during 
the auction as prices rise. A bidder's upfront payment is not 
attributed to specific licenses. Rather, a bidder may place bids on any 
combination of licenses it selected on its short-form application (FCC 
Form 175) as long as the total number of bidding units associated with 
those licenses does not exceed its current eligibility.
    24. Eligibility cannot be increased during the auction; it can only 
remain the same or decrease. Thus, in calculating its upfront payment 
amount and hence its initial bidding eligibility, an applicant must 
determine the maximum number of bidding units it may wish to bid on (or 
hold provisionally winning bids on) in any single round, and submit an 
upfront payment amount covering that total number of bidding units. 
Provisionally winning bids are bids that would become final winning 
bids if the auction were to close in that given round. The Bureau seeks 
comment on these proposals.
ii. Activity Rule
    25. In order to ensure that the auction closes within a reasonable 
period of time, an activity rule requires bidders to bid actively 
throughout the auction, rather than wait until late in the auction 
before participating. A bidder's activity in a round will be the sum of 
the bidding units associated with any licenses upon which it places 
bids during the current round and the bidding units associated with any 
licenses for which it holds provisionally winning bids. Bidders are 
required to be active on a specific percentage of their current bidding 
eligibility during each round of the auction. Failure to maintain the 
requisite activity level will result in the use of an activity rule 
waiver, if any remain, or a reduction in the bidder's eligibility, 
possibly curtailing or eliminating the bidder's ability to place 
additional bids in the auction.
    26. The Bureau proposes to divide the auction into at least two 
stages, each characterized by a different activity requirement. The 
auction will start in Stage One. The Bureau proposes to advance the 
auction to the next stage by announcement during the auction. In 
exercising this discretion, the Bureau will consider a variety of 
measures of auction activity, including but not limited to the 
percentage of licenses (as measured in bidding units) on which there 
are new bids, the number of new bids, and the increase in revenue. The 
Bureau seeks comment on these proposals.
    27. The Bureau proposes the following activity requirements, while 
noting again that the Bureau retains the discretion to change stages 
unilaterally by announcement during the auction. In each round of the 
first stage of the auction (Stage One), a bidder desiring to maintain 
its current bidding eligibility is required to be active on licenses 
representing at least 80 percent of its current bidding eligibility. 
Failure to maintain the required activity level will result in the use 
of an activity rule waiver or a reduction in the bidder's bidding 
eligibility for the next round of bidding. During Stage One, a bidder's 
reduced eligibility for the next round will be calculated by 
multiplying the bidder's current round activity by five-fourths (\5/
4\). In each round of the second stage (Stage Two), a bidder desiring 
to maintain its current bidding eligibility is required to be active on 
95 percent of its current bidding eligibility. Failure to maintain the 
required activity level will result in the use of an activity rule 
waiver or a reduction in the bidder's bidding eligibility for the next 
round of bidding. During Stage Two, a bidder's reduced eligibility for 
the next round will be calculated by multiplying the bidder's current 
round activity by twenty-nineteenths (20/19).
    28. Under this proposal, the Bureau will retain the discretion to 
change the activity requirements during the auction. For example, the 
Bureau could decide not to transition to Stage Two if it believes the 
auction is progressing satisfactorily under the Stage One activity 
requirement, to transition to Stage Two with an activity requirement 
that is higher or lower than the 95 percent proposed herein, or to add 
an additional stage with a higher activity requirement. If the Bureau 
exercises this discretion, it will alert bidders by announcement in the 
FCC Auction System.
iii. Activity Rule Waivers and Reducing Eligibility
    29. Use of an activity rule waiver preserves the bidder's 
eligibility despite the bidder's activity in the current round being 
below the required minimum level. An activity rule waiver applies to an 
entire round of bidding, not to particular licenses. Activity rule 
waivers can be either proactive or automatic and are principally a 
mechanism for bidders to avoid the loss of bidding eligibility in the 
event that exigent circumstances prevent them from bidding in a 
particular round. The Auction 89 Comment Public Notice provides 
additional, more detailed

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information on how activity rule waivers operate.
    30. The Bureau proposes that each bidder in Auction 89 be provided 
with three activity rule waivers that may be used at the bidder's 
discretion during the course of the auction. The Bureau seeks comment 
on this proposal.
iv. Reserve Price or Minimum Opening Bids
    31. A reserve price is an absolute minimum price below which an 
item will not be sold. Reserve prices can be either published or 
unpublished. A minimum opening bid, on the other hand, is the minimum 
bid price set at the beginning of the auction below which no bids are 
accepted. It is generally used to accelerate the competitive bidding 
process. Also, the auctioneer may have the discretion to lower the 
minimum opening bid amount later in the auction. It is also possible 
for the minimum opening bid and the reserve price to be the same 
amount.
    32. The Bureau proposes to establish minimum opening bid amounts 
for Auction 89. The Bureau believes a minimum opening bid amount, which 
has been used in other auctions, is an effective bidding tool for 
accelerating the competitive bidding process. The Bureau does not 
propose a separate reserve price for the licenses to be offered in 
Auction 89.
    a. 218-219 MHz Licenses
    33. For 218-219 MHz licenses offered in Auction 89, the Bureau 
proposes to calculate minimum opening bid amounts on a license-by-
license basis using a formula based on bandwidth and license area 
population: $.01 * MHz * license area population with a minimum of $500 
per license.
    34. The resulting minimum opening bid amount proposed for each 218-
219 MHz license available in Auction 89 is set forth in Attachment A of 
the Auction 89 Comment Public Notice.
b. 220 MHz Licenses
    35. For 220 MHz licenses offered in Auction 89, the Bureau proposes 
to calculate minimum opening bid amounts on a license-by-license basis 
as follows: EA Licenses $500 per license; and EAG Licenses $0.01 * MHz 
* license area population.
    36. The minimum opening bid amount proposed for each 220 MHz 
license available in Auction 89 is set forth in Attachment A of the 
Auction 89 Comment Public Notice.
    37. The Bureau seeks comment on its proposals concerning minimum 
opening bids. If commenters believe that these minimum opening bid 
amounts will deter substantial numbers of bidders from placing bids on 
licenses, or are not reasonable amounts, or should instead operate as a 
reserve price, they should explain why this is so, and comment on the 
desirability of an alternative approach. Commenters are advised to 
support their claims with valuation analyses and suggested reserve 
prices or minimum opening bid amount levels or formulas. In 
establishing minimum opening bid amounts, the Bureau particularly seeks 
comment on such factors as the amount of spectrum being auctioned, 
levels of incumbency within these spectrum bands, the availability of 
technology to provide service, the size of the service areas, issues of 
interference with other spectrum bands and any other relevant factors 
that could reasonably have an impact on valuation of the licenses being 
auctioned. The Bureau seeks comment on this approach, and on whether, 
consistent with Section 309(j), the public interest would be served by 
having no minimum opening bid amount or reserve price.
v. Bid Amounts
    38. The Bureau proposes that, in each round, eligible bidders be 
able to place a bid on a given license using one or more pre-defined 
bid amounts. Under this proposal, the FCC Auction System interface will 
list the acceptable bid amounts for each license. The Bureau proposes 
to calculate bid amounts.
a. Minimum Acceptable Bids
    39. The first of the acceptable bid amounts is called the minimum 
acceptable bid amount. The minimum acceptable bid amount for a license 
will be equal to its minimum opening bid amount until there is a 
provisionally winning bid on the license. After there is a 
provisionally winning bid for a license, the minimum acceptable bid 
amount for that license will be equal to the amount of the 
provisionally winning bid plus a percentage of that bid amount 
calculated using the formula. In general, the percentage will be higher 
for a license receiving many bids than for a license receiving few 
bids. In the case of a license for which the provisionally winning bid 
has been withdrawn, the minimum acceptable bid amount will equal the 
second highest bid received for the license.
    40. The percentage of the provisionally winning bid used to 
establish the minimum acceptable bid amount (the additional percentage) 
is calculated at the end of each round, based on an activity index. The 
activity index is a weighted average of (a) the number of distinct 
bidders placing a bid on the license, and (b) the activity index from 
the prior round. Specifically, the activity index is equal to a 
weighting factor times the number of bidders placing a bid covering the 
license in the most recent bidding round plus one minus the weighting 
factor times the activity index from the prior round. The additional 
percentage is determined as one plus the activity index times a minimum 
percentage amount, with the result not to exceed a given maximum. The 
additional percentage is then multiplied by the provisionally winning 
bid amount to obtain the minimum acceptable bid for the next round. The 
Bureau proposes initially to set the weighting factor at 0.5, the 
minimum percentage at 0.1 (10%), and the maximum percentage at 0.3 
(30%). Hence, at these initial settings, the minimum acceptable bid for 
a license will be between ten percent and thirty percent higher than 
the provisionally winning bid, depending upon the bidding activity for 
the license. Equations and examples are shown in Attachment B of the 
Auction 89 Comment Public Notice.
b. Additional Bid Amounts
    41. The Bureau proposes to allow no additional bid amounts per 
license. Thus, the minimum acceptable bid would be the only bid amount 
available in the FCC Auction System interface for each license. The 
Bureau seeks comment on this proposal. The Bureau also seeks comment on 
whether, in the alternative, to allow more bid amounts per license in a 
given round, and if so, how many--up to a maximum of eight additional 
bid amounts (for a total of nine bid amounts). In particular, 
commenters should address the issue of additional bid amounts in light 
of particular circumstances of Auction 89, including the nature of the 
license inventory.
    42. If the Bureau allows additional bid amounts, it proposes to 
calculate any additional bid amounts using the minimum acceptable bid 
amount and a bid increment percentage--more specifically, by 
multiplying the minimum acceptable bid by one plus successively higher 
multiples of the bid increment percentage. If, for example, the bid 
increment percentage is five percent, the calculation of the first 
additional acceptable bid amount is (minimum acceptable bid amount) * 
(1 + 0.05), or (minimum acceptable bid amount) * 1.05; the second 
additional acceptable bid amount equals the minimum acceptable bid 
amount times one plus two times the bid increment percentage, or 
(minimum acceptable bid amount) * 1.1, etc. If the Bureau allows 
additional bid amounts, it proposes to

[[Page 32777]]

set the bid increment percentage at 0.05 (5%).
    43. The Bureau retains the discretion to change the minimum 
acceptable bid amounts, the number of acceptable bid amounts, the 
additional bid amounts, and the parameters of the formulas used to 
calculate minimum acceptable bid amounts and additional bid amounts if 
the Bureau determines that circumstances so dictate. Further, the 
Bureau retains the discretion to make such changes on a license-by-
license basis.
    44. The Bureau also retains the discretion to limit (a) the amount 
by which a minimum acceptable bid for a license may increase compared 
with the corresponding provisionally winning bid, and (b) the amount by 
which any additional bid amount may increase compared with the 
immediately preceding acceptable bid amount. For example, the Bureau 
could set a $1 million limit on increases in minimum acceptable bid 
amounts over provisionally winning bids. Thus, if the activity-based 
formula calculates a minimum acceptable bid amount that is $2 million 
higher than the provisionally winning bid on a license, the minimum 
acceptable bid amount would instead be capped at $1 million above the 
provisionally winning bid. The Bureau seeks comment on the 
circumstances under which the Bureau should employ such a limit, 
factors it should consider when determining the dollar amount of the 
limit, and the tradeoffs in setting such a limit or changing parameters 
of the activity-based formula, such as changing the minimum percentage. 
If the Bureau exercises this discretion, it will alert bidders by 
announcement in the FCC Auction System.
    45. The Bureau seeks comment on its proposals. Commenters may wish 
to address the role of the minimum acceptable bids and the number of 
acceptable bid amounts in managing the pace of the auction and the 
tradeoffs in managing auction pace by changing the bidding schedule, 
activity requirements, or bid amount parameters, or by using other 
means.
vi. Provisionally Winning Bids
    46. Provisionally winning bids are bids that would become final 
winning bids if the auction were to close in that given round. At the 
end of a bidding round, a provisionally winning bid for each license 
will be determined based on the highest bid amount received for the 
license. In the event of identical high bid amounts being submitted on 
a license in a given round (i.e., tied bids), the Bureau 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 license in a subsequent round, the provisionally winning bid 
again will be determined by the highest bid amount received for the 
license.
    47. A provisionally winning bid will remain the provisionally 
winning bid until there is a higher bid on the license at the close of 
a subsequent round, unless the provisionally winning bid is withdrawn. 
Bidders are reminded that provisionally winning bids count toward 
activity for purposes of the activity rule.
vii. Bid Removal
    48. For Auction 89, the Bureau proposes and seeks comment on 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 undo any of its bids 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.
viii. Bid Withdrawal
    49. A bidder may withdraw its provisionally winning bids using the 
withdraw bids function in the FCC Auction System. A bidder that 
withdraws its provisionally winning bid(s) is subject to the bid 
withdrawal payment provisions of the Commission rules.
    50. For Auction 89, the Bureau proposes to limit each bidder to 
withdrawing provisionally winning bids in only one round during the 
course of the auction. To permit a bidder to withdraw bids in more than 
one round may encourage insincere bidding or the use of withdrawals for 
anti-competitive purposes. The round in which withdrawals may be used 
will be at the bidder's discretion, and there is no limit on the number 
of provisionally winning bids that may be withdrawn during that round. 
Withdrawals must be in accordance with the Commission's rules, and are 
subject to the bid withdrawal payment provisions specified in 47 CFR 
1.2104(g). The Bureau seeks comment on these bid withdrawal procedures. 
If commenters believe that each bidder should be allowed to withdraw 
provisionally winning bids in more than one round during the course of 
the auction, or should not be permitted to withdraw any bids, they 
should state how many bid withdrawal rounds they seek and explain what 
specific factors lead them to that conclusion.

D. Post-Auction Procedures

i. Establishing the Interim Withdrawal Payment Percentage
    51. The Bureau seeks 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 the amount of the 
withdrawn bid and the amount of the winning bid in the same or 
subsequent auction(s). If a bid is withdrawn and no subsequent higher 
bid is placed and/or the license is not won in the same auction, the 
final withdrawal payment cannot be calculated until after the close of 
a subsequent auction in which a higher bid for the license (or the 
equivalent to the license) is placed or the license is won. When that 
final payment cannot yet be calculated, the bidder that withdrew the 
bid is assessed an interim bid withdrawal payment, which will be 
applied toward any final bid withdrawal payment that is ultimately 
assessed. Section 1.2104(g)(1) of the Commission rules requires that 
the percentage of the withdrawn bid to be assessed as an interim bid 
withdrawal payment be between three percent and twenty percent and that 
it be set in advance of the auction.
    52. The Commission has determined 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 licenses being offered. The 
Commission has 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 the 
licenses being offered in the auction, such as when few licenses are 
offered that are on adjacent frequencies or in adjacent areas, or when 
there are few synergies to be captured by combining licenses.

[[Page 32778]]

    53. With respect to the licenses being offered in Auction 89, the 
service rules permit a variety of fixed, mobile, and paging services, 
though the opportunities for combining licenses on adjacent frequencies 
or in adjacent areas are limited in some cases. Balancing the potential 
need for bidders to use withdrawals to avoid winning incomplete 
combinations of licenses with the Bureau's interest in deterring 
undesirable strategic use of withdrawals, the Bureau proposes a 
percentage below the maximum twenty percent permitted under the current 
rules but above the three percent previously provided by the 
Commission's rules. Specifically, the Bureau proposes to establish an 
interim bid withdrawal payment of ten percent of the withdrawn bid for 
this auction. The Bureau seeks comment on this proposal. If commenters 
advocate the use of a different percentage they should provide relevant 
support including information on the likelihood that bidders will need 
to aggregate licenses on adjacent frequencies or in adjacent areas.
ii. Establishing the Additional Default Payment Percentage
    54. Any winning bidder that, after the close of an auction, 
defaults--by, for example, failing to remit the required down payment 
within the prescribed period of time, failing to submit a timely long-
form application, or failing 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 license 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.
    55. Section 1.2104(g)(2) of the Commission's rules provides that in 
advance of each auction without combinatorial or package bidding, 
establish an additional default payment for that auction of three 
percent up to a maximum of twenty percent. The level of this payment in 
each case will be based on the nature of the service and the inventory 
of the licenses being offered.
    56. As previously noted by the Commission, defaults weaken the 
integrity of the auction process and impede the deployment of service 
to the public, and an additional default payment of more than three 
percent will be more effective in deterring defaults. Given the history 
of these services and the inventory of the licenses being offered in 
Auction 89, the Bureau believes that an additional default payment 
percentage of fifteen percent will provide a sufficient deterrent to 
defaults. The Bureau seeks comment on this proposal.

IV. Ex Parte Rules

    57. This proceeding has been designated as a permit-but-disclose 
proceeding in accordance with the Commission's ex parte rules. Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentations must contain summaries of the substance 
of the presentations and not merely a listing of the subjects 
discussed. More than a one or two sentence description of the views and 
arguments presented is generally required. Other rules pertaining to 
oral and written ex parte presentations in permit-but-disclose 
proceedings are set forth in 47 CFR 1.1206(b).

Federal Communications Commission.

Gary D. Michaels,
Deputy Chief, Auctions and Spectrum Access Division, WTB.
[FR Doc. 2010-13880 Filed 6-8-10; 8:45 am]
BILLING CODE 6712-01-P