Auction of FM Broadcast Construction Permits Rescheduled for April 23, 2013; Notice of Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 94, 2260-2273 [2013-00347]
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comments with the committee as
described below.
Written Comments: Although written
comments are accepted until the date of
the meeting, written comments should
be submitted to PCAST no later than
12:00 p.m. (EST) on January 16, 2013, so
that the comments may be made
available to the PCAST members prior
to the meeting for their consideration.
Information regarding how to submit
comments and documents to PCAST is
available at https://whitehouse.gov/ostp/
pcast in the section entitled ‘‘Connect
with PCAST.’’
Please note that because PCAST
operates under the provisions of FACA,
all public comments and/or
presentations will be treated as public
documents and will be made available
for public inspection, including being
posted on the PCAST Web site.
Meeting Accommodations:
Individuals requiring special
accommodation to access this public
meeting should contact Dr. Scholz at
least five business days prior to the
meeting so that appropriate
arrangements can be made.
Issued in Washington, DC, on January 4,
2013.
LaTanya R. Butler,
Deputy Committee Management Officer.
[FR Doc. 2013–00329 Filed 1–9–13; 8:45 am]
BILLING CODE 6450–01–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9769–3]
Proposed Consent Decree, Clean Air
Act Citizen Suit
Environmental Protection
Agency (EPA).
ACTION: Notice of proposed consent
decree; extension of public comment
period.
AGENCY:
On December 7, 2012, in
accordance with section 113(g) of the
Clean Air Act, as amended (‘‘CAA’’ or
the ‘‘Act’’), the EPA published a notice
in the Federal Register of a proposed
consent decree to address a lawsuit filed
by Sierra Club in the United States
District Court for the District of
Columbia: Sierra Club v. Jackson, No.
1:08–cv–00424 RWR (D. DC). Sierra
Club filed a complaint alleging that the
EPA failed to meet its obligations under
section 112(e)(1)(E) of the CAA to
promulgate emission standards for
hazardous air pollutant emissions from
brick and structural clay products
manufacturing facilities and clay
ceramics manufacturing facilities
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SUMMARY:
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located at major sources by November
15, 2000. The proposed consent decree
establishes deadlines for the EPA’s
proposed and final actions for meeting
these obligations. This notice extends
the comment period on the proposed
consent decree until January 14, 2013.
DATES: Written comments on the
proposed consent decree must be
received by January 14, 2013.
ADDRESSES: Submit your comments,
identified by Docket ID number EPA–
HQ–OGC–2012–0905, online at
www.regulations.gov (EPA’s preferred
method); by email to
oei.docket@epa.gov; by mail to EPA
Docket Center, Environmental
Protection Agency, Mailcode: 2822T,
1200 Pennsylvania Ave. NW.,
Washington, DC 20460–0001; or by
hand delivery or courier to EPA Docket
Center, EPA West, Room 3334, 1301
Constitution Ave. NW., Washington,
DC, between 8:30 a.m. and 4:30 p.m.
Monday through Friday, excluding legal
holidays. Comments on a disk or CD–
ROM should be formatted in Word or
ASCII file, avoiding the use of special
characters and any form of encryption,
and may be mailed to the mailing
address above.
FOR FURTHER INFORMATION CONTACT:
Scott Jordan, Air and Radiation Law
Office (2344A), Office of General
Counsel, U.S. Environmental Protection
Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460; telephone: (202)
564–7508; fax number (202) 564–5603;
email address: jordan.scott@epa.gov.
SUPPLEMENTARY INFORMATION:
Additional Information About the
Proposed Consent Decree
The proposed consent decree would
resolve a lawsuit filed by Sierra Club
seeking to compel EPA to promulgate
emission standards for hazardous air
pollutant emissions from brick and
structural clay products manufacturing
facilities and clay ceramics
manufacturing facilities located at major
sources under section 112(e)(1)(E) of the
CAA. Under the proposed consent
decree, EPA shall no later than August
30, 2013, sign a notice of proposed
rulemaking to set national emission
standards for hazardous air pollutants
(‘‘NESHAP’’) pursuant to section 112(d)
of the CAA, 42 U.S.C. 7412(d), for brick
and structural clay products
manufacturing facilities and clay
ceramics manufacturing facilities
located at major sources. In addition,
under the proposed consent decree, EPA
shall no later than July 31, 2014, sign a
notice of final rulemaking to set
NESHAP for the source categories
covered by the proposed rule.
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The proposed consent decree further
requires that, within 10 business days of
signing a proposed or final rule, EPA
shall deliver a notice of such action to
the Office of the Federal Register for
publication and that once EPA fulfills
its obligations under the decree it may
move to have the decree terminated.
On December 7, 2012, the EPA
published a notice of the abovedescribed proposed consent decree and
invited written comments on the
proposed decree from persons who were
not named as parties or intervenors to
the litigation in question. 77 FR 73029.
This notice extends the public comment
period on the proposed consent decree
until January 14, 2013.
Please see the notice published at 77
FR 73029 (Dec. 7, 2012) for information
on how to obtain a copy of the proposed
consent decree and how, and to whom,
to submit comments concerning the
proposed decree.
Dated: January 1, 2013.
Lorie J. Schmidt,
Associate General Counsel.
[FR Doc. 2013–00360 Filed 1–9–13; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
[AU Docket No. 12–239; DA 12–1865]
Auction of FM Broadcast Construction
Permits Rescheduled for April 23,
2013; Notice of Filing Requirements,
Minimum Opening Bids, Upfront
Payments, and Other Procedures for
Auction 94
Federal Communications
Commission.
ACTION: Notice.
AGENCY:
This document announces the
auction of certain FM broadcast
construction permits. This document is
intended to familiarize prospective
applicants with the procedures and
other requirements for participation in
Auction 94.
DATES: Applications to participate in
Auction 94 must be filed prior to 6:00
p.m. Eastern Time (ET) on February 6,
2013. Bidding for construction permits
in Auction 94 is scheduled to begin on
April 23, 2013.
FOR FURTHER INFORMATION CONTACT:
Wireless Telecommunications Bureau,
Auctions and Spectrum Access Division:
For auction legal questions: Howard
Davenport at (202) 418–0660; for general
auction questions: Jeff Crooks at (202)
418–0660 or Linda Sanderson at (717)
338–2868. Media Bureau, Audio
SUMMARY:
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Division: For FM service rule questions:
Lisa Scanlan or Tom Nessinger at (202)
418–2700.
SUPPLEMENTARY INFORMATION: This is a
summary of the Auction 94 Procedures
Public Notice released on November 21,
2012. The complete text of the Auction
94 Procedures Public Notice, including
an attachment and related Commission
documents, is available for public
inspection and copying from 8:00 a.m.
to 4:30 p.m. Eastern Time (ET) Monday
through Thursday or from 8:00 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 94
Procedures 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: https://
www.BCPIWEB.com. When ordering
documents from BCPI, please provide
the appropriate FCC document number,
for example, DA 12–1865. The Auction
94 Procedures Public Notice and related
documents also are available on the
Internet at the Commission’s Web site:
https://wireless.fcc.gov/auctions/94/, or
by using the search function for AU
Docket No. 12–1865 on the
Commission’s Electronic Comment
Filing System (ECFS) web page at https://
www.fcc.gov/cgb/ecfs/.
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I. General Information
A. Introduction
1. On September 11, 2012, the
Wireless Telecommunications and
Media Bureaus (the Bureaus) released a
public notice seeking comment on
competitive bidding procedures to be
used in Auction 94. Six parties
submitted seven comments in response
to the Auction 94 Comment Public
Notice, 77 FR 60690, October 4, 2012.
2. On November 21, 2012, The
Bureaus released a public notice that
established the procedures and
minimum opening bid amounts for the
upcoming auction of certain FM
broadcast construction permits and
announced a revised auction schedule.
This auction, which is designated as
Auction 94, is now scheduled to start on
April 23, 2013. Construction Permits in
Auction 94
3. Auction 94 will offer 112
construction permits in the FM
broadcast service. The construction
permits to be auctioned, which are
listed in Attachment A of the Auction
94 Procedures Public Notice, are for 112
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new FM allotments, including 25
construction permits that were offered
but not sold or were defaulted upon in
prior auctions. These construction
permits are for vacant FM allotments,
reflecting FM channels assigned to the
Table of FM Allotment.
4. Attachment A to the Auction 94
Procedures Public Notice reflects
changes to the list of construction
permits that were proposed for this
auction. The Bureaus have removed five
construction permits from the list of
construction permits that were proposed
for inclusion in this auction. The
Auction 94 Comment Public Notice
explains the Bureaus’ rationale for
removing certain permits and not
offering those five permits in Auction
94.
5. Applicants may apply for any
vacant FM allotment listed in
Attachment A of the Auction 94
Procedures Public Notice. When two or
more short-form applications (FCC Form
175) specifying the same FM allotment
are accepted for filing, mutual
exclusivity exists for auction purposes
and that construction permit must be
awarded by competitive bidding
procedures. Once mutual exclusivity
exists for auction purposes, even if only
one applicant for a particular
construction permit submits an upfront
payment, that applicant is required to
submit a bid in order to obtain the
permit.
B. Rules and Disclaimers
i. Relevant Authority
6. Prospective applicants must
familiarize themselves thoroughly with
the Commission’s general competitive
bidding rules, including recent
amendments and clarifications, as well
as Commission decisions in proceedings
regarding competitive bidding
procedures, application requirements,
and obligations of Commission
licensees. Broadcasters should also
familiarize themselves with the
Commission’s FM broadcast service
rules contained in 47 CFR 73.201–
73.333 and 73.1001–73.5009.
Prospective bidders must also be
familiar with the broadcast auctions and
competitive bidding rules contained in
47 CFR 1.2101–1.2112 and 73.5000–
73.5009. All bidders must also be
thoroughly familiar with the
procedures, terms and conditions
contained in the Auction 94 Procedures
Public Notice and other public notices
and orders referenced in that Public
Notice. The terms contained in the
Commission’s rules, relevant orders,
and public notices are not negotiable.
The Commission may amend or
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supplement the information contained
in its public notices at any time, and
will issue public notices to convey any
new or supplemental information to
applicants. It is the responsibility of all
applicants to remain current with all
Commission rules and with all public
notices pertaining to this auction.
ii. Prohibited Communications and
Compliance With Antitrust Laws
7. To ensure the competitiveness of
the auction process, 47 CFR 1.2105(c) of
the Commission’s rules prohibits
auction applicants for construction
permits in any of the same geographic
license areas from communicating with
each other about bids, bidding
strategies, or settlements unless such
applicants have identified each other on
their short-form applications (FCC Form
175) as parties with whom they have
entered into agreements pursuant to 47
CFR 1.2105(a)(2)(viii).
a. Entities Subject to Section 1.2105
8. The prohibition on certain
communications in 47 CFR 1.215(c) will
apply to any applicants that submit
short-form applications seeking to
participate in a Commission auction for
construction permits in the same
geographic license area. Thus, unless
they have identified each other on their
short-form applications as parties with
whom they have entered into
agreements under 47 CFR
1.2105(a)(2)(viii), applicants for any of
the same geographic license areas must
affirmatively avoid all communications
with or disclosures to each other that
affect or have the potential to affect bids
or bidding strategy. In some instances,
this prohibition extends to
communications regarding the postauction market structure. This
prohibition applies to all applicants
regardless of whether such applicants
become qualified bidders or actually
bid. For the FM service, the market
designation is the particular vacant FM
allotment (e.g., Harrison, Michigan,
Channel 280A, MM–FM664A). In
Auction 94, this rule would apply to
applicants designating any of the same
FM allotments on the short-form
application.
9. For purposes of this prohibition, 47
CFR 1.2105(c)(7)(i) defines ‘‘applicant’’
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. For
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example, where an individual served as
an officer for two or more applicants,
the Bureaus have found that the bids
and bidding strategies of one applicant
are conveyed to the other applicant,
and, absent a disclosed bidding
agreement, an apparent violation of 47
CFR 1.2105(c) occurs.
10. Individuals and entities subject to
47 CFR 1.2105(c) should take special
care in circumstances where their
employees may receive information
directly or indirectly relating to any
competing applicant’s bids or bidding
strategies.
11. 47 CFR 1.2105(c) permits a noncontrolling interest holders to obtain
interests in more than one competing
applicant without violating the rule
provided specified conditions are met
(including a certification that no
prohibited communications have
occurred or will occur), but that
exception does not extend to controlling
interest holders.
12. Auction 94 applicants are
encouraged not to use the same
individual as an authorized bidder. A
violation of 47 CFR 1.2105(c) 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. Similarly, if the authorized
bidders are different individuals
employed by the same organization
(e.g., law firm, engineering firm or
consulting firm), a violation similarly
could occur. In such a case, at a
minimum, applicants should certify on
their applications that precautionary
steps have been taken to prevent
communication between authorized
bidders, and that the applicant and its
bidders will comply with 47 CFR
1.2105(c).
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b. Prohibition Applies Until Down
Payment Deadline
13. 47 CFR 1.2105(c)’s prohibition on
certain communications begins at the
short-form application filing deadline
and ends at the down payment deadline
after the auction closes, which will be
announced in a future public notice.
c. Prohibited Communications
14. Applicants must not communicate
directly or indirectly about bids or
bidding strategy to other applicants in
this auction. 47 CFR 1.2105(c) prohibits
not only communication about an
applicant’s own bids or bidding
strategy, it also prohibits
communication of another applicant’s
bids or bidding strategy. While 47 CFR
1.2105(c) does not prohibit non-auctionrelated business negotiations among
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auction applicants, each applicant must
remain vigilant so as not to directly or
indirectly communicate information
that affects, or could affect, bids,
bidding strategy, or the negotiation of
settlement agreements.
15. Applicants are cautioned that the
Commission remains vigilant about
prohibited communications taking place
in other situations, including
communications regarding capital calls
or requests for additional funds in
support of bids or bidding strategies. An
applicant also may not use the
Commission’s bidding system to
disclose its bidding strategy. Applicants
also should use caution in their dealings
with other parties, such as members of
the press, financial analysts, or others
who might become conduits for the
communication of prohibited bidding
information. Similarly, an applicant’s
public statement of intent not to
participate in Auction 94 bidding could
also violate the rule. Applicants are
hereby placed on notice that public
disclosure of information relating to
bids, or bidding strategies, or to post
auction market structures may violate
47 CFR 1.2105(c).
d. Disclosure of Bidding Agreements
and Arrangements
16. The Commission’s rules do not
prohibit applicants from entering into
otherwise lawful bidding agreements
before filing their short-form
applications, as long as they disclose the
existence of the agreement(s) in their
short-form applications. Applicants
must identify in their short-form
applications all parties with whom they
have entered into any agreements,
arrangements, or understandings of any
kind relating to the construction permits
being auctioned, including any
agreements relating to post-auction
market structure.
17. If parties agree in principle on all
material terms prior to the short-form
application filing deadline, each party
to the agreement must identify the other
party or parties to the agreement on its
short-form application under 47 CFR
1.2105(c), even if the agreement has not
been reduced to writing. If the parties
have not agreed in principle by the
short-form filing deadline, they should
not include the names of parties to
discussions on their applications, and
they may not continue negotiation,
discussion or communication with any
other applicants after the short-form
application filing deadline.
18. 47 CFR 1.2105(c) does not prohibit
non-auction-related business
negotiations among auction applicants.
However, certain discussions or
exchanges could touch upon
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impermissible subject matters because
they may convey pricing information
and bidding strategies. Such subject
areas include, but are not limited to,
issues such as management, sales, local
marketing agreements, rebroadcast
agreements, and other transactional
agreements.
e. Section 1.2105(c) Certification
19. By electronically submitting a
short-form application, each applicant
in Auction 94 certifies its compliance
with 47 CFR 1.2105(c) and 73.5002. In
particular, an applicant must certify
under penalty of perjury it has not
entered and will not enter into any
explicit or implicit agreements,
arrangements or understandings of any
kind with any parties, other than those
identified in the application, regarding
the amount of the applicant’s bids,
bidding strategies, or the particular
construction permits on which it will or
will not bid. However, the Bureaus
caution that merely filing a certifying
statement as part of an application will
not outweigh specific evidence that a
prohibited communication has
occurred, nor will it preclude the
initiation of an investigation when
warranted. Any applicant found to have
violated 47 CFR 1.2105(c) may be
subject to sanctions.
f. Duty To Report Prohibited
Communications
20. 47 CFR 1.2105(c)(6) provides that
any applicant that makes or receives a
communication that appears to violate
47 CFR 1.2105(c) must report such
communication in writing to the
Commission immediately, and in no
case later than five business days after
the communication occurs. The
Commission has clarified that each
applicant’s obligation to report any such
communication continues beyond the
five-day period after the communication
is made, even if the report is not made
within the five-day period.
21. In addition, 47 CFR 1.65 requires
an auction applicant to notify the
Commission of any substantial change
to the information or certifications
included in the pending short-form
application. An applicant is therefore
required by 47 CFR 1.65 to report to the
Commission any communication the
applicant has made to or received from
another applicant after the short-form
application filing deadline that affects
or has the potential to affect bids or
bidding strategy, unless such
communication is made to or received
from a party to an agreement identified
under 47 CFR 1.2105(a)(2)(viii).
22. 47 CFR 1.65(a) and 1.2105(c)
require each applicant in competitive
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bidding proceedings to furnish
additional or corrected information
within five days of a significant
occurrence, or to amend its short-form
application no more than five days after
the applicant become aware of the need
for amendment.
g. Procedure for Reporting Prohibited
Communications
23. A party reporting any
communication pursuant to 47 CFR
1.65, 1.2105(a)(2), or 1.2105(c)(6) must
take care to ensure that any report of a
prohibited communication does not
itself give rise to a violation of 47 CFR
1.2105(c). For example, a party’s report
of a prohibited communication could
violate the rule by communicating
prohibited information to other
applicants through the use of
Commission filing procedures that
would allow such materials to be made
available for public inspection.
24. 47 CFR1.2105(c) requires parties
to file only a single report concerning a
prohibited communication and to file
that report with Commission personnel
expressly charged with administering
the Commission’s auctions. This rule is
designed to minimize the risk of
inadvertent dissemination of
information in such reports. Any reports
required by 47 CFR 1.2105(c) must be
filed consistent with the instructions set
forth in the Auction 94 Procedures
Public Notice. For Auction 94, such
reports must be filed with the Chief of
the Auctions and Spectrum Access
Division, Wireless Telecommunications
Bureau, by the most expeditious means
available. Any such report should be
submitted by email to the following
email address: auction94@fcc.gov. If you
choose instead to submit a report in
hard copy, any such report must be
delivered only to: Margaret W. Wiener,
Chief, Auctions and Spectrum Access
Division, Wireless Telecommunications
Bureau, Federal Communications
Commission, 445 12th Street SW., Room
6423, Washington, DC 20554.
25. A party seeking to report such a
prohibited communication should
consider submitting its report with a
request that the report or portions of the
submission be withheld from public
inspection by following the procedures
specified in 47 CFR 0.459 of the
Commission’s rules. Such parties also
are encouraged to coordinate with the
Auctions and Spectrum Access Division
staff about the procedures for submitting
such reports.
h. Winning Bidders Must Disclose
Terms of Agreements
26. Each applicant that is a winning
bidder will be required to disclose in its
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long-form applications the specific
terms, conditions, and parties involved
in any agreement it has entered into.
This applies to any bidding consortia,
joint venture, partnership, or agreement,
understanding, or other arrangement
entered into relating to the competitive
bidding process, including any
agreement relating to the post-auction
market structure. Failure to comply with
the Commission’s rules can result in
enforcement action.
i. Additional Information Concerning
Rule Prohibiting Certain
Communications
27. A summary listing of documents
issued by the Commission and the
Bureaus addressing the application of
47 CFR 1.2105(c) may be found in
Attachment D of the Auction 94
Procedures Public Notice. These
documents are available on the
Commission’s auction web page
j. Antitrust Laws
28. Regardless of compliance with the
Commission’s rules, applicants remain
subject to the antitrust laws, which are
designed to prevent anticompetitive
behavior in the marketplace.
Compliance with the disclosure
requirements of 47 CFR 1.2105(c) will
not insulate a party from enforcement of
the antitrust laws.
29. To the extent the Commission
becomes aware of specific allegations
that suggest that violations of the federal
antitrust laws may have occurred, the
Commission may refer such allegations
to the United States Department of
Justice for investigation. If an applicant
is found to have violated the antitrust
laws or the Commission’s rules in
connection with its participation in the
competitive bidding process, it may be
subject to forfeiture of its upfront
payment, down payment, or full bid
amount and may be prohibited from
participating in future auctions, among
other sanctions.
iii. Due Diligence
30. Each potential bidder is solely
responsible for investigating and
evaluating all technical and marketplace
factors that may have a bearing on the
value of the construction permits for
broadcast facilities they are seeking in
this auction. Each bidder is responsible
for assuring that, if it wins a
construction permit, it will be able to
build and operate facilities in
accordance with the Commission’s
rules. The FCC makes no
representations or warranties about the
use of this spectrum for particular
services. Applicants should be aware
that an FCC auction represents an
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opportunity to become an FCC
permittee in a broadcast service, subject
to certain conditions and regulations.
An FCC auction does not constitute an
endorsement by the FCC of any
particular service, technology, or
product, nor does an FCC construction
permit or license constitute a guarantee
of business success.
31. An applicant should perform its
due diligence research and analysis
before proceeding, as it would with any
new business venture. Each potential
bidder is strongly encouraged to review
all underlying Commission orders, such
as the specific order amending the FM
Table of Allotments and allotting the
FM channel(s) on which it plans to bid.
An order adopted in an FM allotment
rulemaking proceeding may include
information unique to the allotment
such as site restrictions or expense
reimbursement requirements. Each
potential bidder should perform
technical analyses or refresh their
previous analyses to assure itself that,
should it become a winning bidder for
any Auction 94 construction permit, it
will be able to build and operate
facilities that will fully comply with all
applicable technical and legal
requirements. Each applicant should
inspect any prospective transmitter sites
located in, or near, the service area for
which it plans to bid, confirm the
availability of such sites, and familiarize
itself with the Commission’s rules
regarding the National Environmental
Policy Act at 47 CFR Chapter 1, Part 1,
Subpart I.
32. Each applicant should conduct its
own research prior to Auction 94 in
order to determine the existence of
pending administrative or judicial
proceedings, including pending
allocation rulemaking proceedings that
might affect its decision to participate in
the auction. Each participant in Auction
94 should continue such research
throughout the auction. The due
diligence considerations mentioned in
the Auction 94 Procedures Public Notice
do not comprise an exhaustive list of
steps that should be undertaken prior to
participating in this auction. As always,
the burden is on the potential bidder to
determine how much research to
undertake, depending upon specific
facts and circumstances related to its
interests.
33. Pending and future judicial
proceedings, as well as certain pending
and future proceedings before the
Commission—including applications,
applications for modification, petitions
for rulemaking, requests for special
temporary authority, waiver requests,
petitions to deny, petitions for
reconsideration, informal objections,
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and applications for review—may relate
to particular applicants, incumbent
permittees, incumbent licensees, or the
construction permits available in
Auction 94. Each prospective applicant
is responsible for assessing the
likelihood of the various possible
outcomes and for considering the
potential impact on construction
permits available in this auction.
34. Applicants are solely responsible
for identifying associated risks and for
investigating and evaluating the degree
to which such matters may affect their
ability to bid on, otherwise acquire, or
make use of the construction permits
available in Auction 94. Each potential
bidder is responsible for undertaking
research to ensure that any permits won
in this auction will be suitable for its
business plans and needs. Each
potential bidder must undertake its own
assessment of the relevance and
importance of information gathered as
part of its due diligence efforts.
35. Applicants may research the
licensing database for the Media Bureau
in order to determine which channels
are already licensed to incumbent
licensees or previously authorized to
construction permittees. Licensing
records are contained in the
Consolidated Data Base System (CDBS)
and may be researched on the Internet
from https://www.fcc.gov/mb.
36. The Commission makes no
representations or guarantees regarding
the accuracy or completeness of
information in its databases or any third
party databases, including, for example,
court docketing systems. To the extent
the Commission’s databases may not
include all information deemed
necessary or desirable by an applicant,
it must obtain or verify such
information from independent sources
or assume the risk of any
incompleteness or inaccuracy in said
databases. Furthermore, the
Commission makes no representations
or guarantees regarding the accuracy or
completeness of information that has
been provided by incumbent licensees
and incorporated into its databases.
iv. Use of Integrated Spectrum Auction
System
37. Bidders will be able to participate
in Auction 94 over the Internet using
the Commission’s web-based Integrated
Spectrum Auction System (ISAS or FCC
Auction System). The Commission
makes no warranty whatsoever with
respect to the FCC Auction System. In
no event shall the Commission, or any
of its officers, employees, or agents, be
liable for any damages whatsoever
(including, but not limited to, loss of
business profits, business interruption,
loss of business information, or any
other loss) arising out of or relating to
the existence, furnishing, functioning,
or use of the FCC Auction System that
is accessible to qualified bidders in
connection with this auction. Moreover,
no obligation or liability will arise out
of the Commission’s technical,
programming, or other advice or service
provided in connection with the FCC
Auction System.
v. Environmental Review Requirements
38. Permittees or licensees must
comply with the Commission’s rules
regarding implementation of the
National Environmental Policy Act and
other federal environmental statutes.
The construction of a broadcast facility
is a federal action, and the permittee or
licensee must comply with the
Commission’s environmental rules, 47
CFR 1.1301–1.1319, for each such
facility. These environmental rules
require, among other things, that the
permittee or licensee consult with
Auction Tutorial Available (via Internet) .......................................................................................
Short-Form Application (FCC Form 175)
Filing Window Opens ..............................................................................................................
Short-Form Application (FCC Form 175)
Filing Window Deadline ..........................................................................................................
Upfront Payments (via wire transfer) ......................................................................................
Mock Auction ............................................................................................................................
Auction Begins ..........................................................................................................................
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iii. Requirements for Participation
41. Those wishing to participate in
this auction must: (1) Submit a shortform application (FCC Form 175)
electronically prior to 6:00 p.m. ET, on
February 6, 2013, following the
electronic filing procedures set forth in
Attachment B to the Auction 94
Procedures Public Notice; (2) Submit a
sufficient upfront payment and an FCC
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Remittance Advice Form (FCC Form
159) by 6:00 p.m. ET, on March 18,
2013, following the procedures and
instructions set forth in Attachment C to
the Auction 94 Procedures Public
Notice; and (3) Comply with all
provisions outlined in the Auctions 94
Procedures Public Notice and applicable
Commission rules.
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expert agencies having environmental
responsibilities, including the U.S. Fish
and Wildlife Service, the State Historic
Preservation Office, the U.S. Army
Corps of Engineers, and the Federal
Emergency Management Agency
(through the local authority with
jurisdiction over floodplains). In
assessing the effect of facility
construction on historic properties, the
permittee or licensee must follow the
provisions of the FCC’s Nationwide
Programmatic Agreement Regarding the
Section 106 National Historic
Preservation Act Review Process. The
permittee or licensee must prepare
environmental assessments for any
facility that may have a significant
impact in or on wilderness areas,
wildlife preserves, threatened or
endangered species, or designated
critical habitats, historical or
archaeological sites, Indian religious
sites, floodplains, and surface features.
In addition, the permittee or licensee
must prepare environmental
assessments for facilities that include
high intensity white lights in residential
neighborhoods or excessive radio
frequency emission.
C. Auction Specifics
i. Bidding Methodology
39. The bidding methodology for
Auction 94 will be a simultaneous
multiple round format. The Commission
will conduct this auction over the
Internet using the FCC Auction System.
Qualified bidders are permitted to bid
electronically via the Internet or by
telephone using the telephonic bidding
option. All telephone calls are recorded.
ii. Pre-Auction Dates and Deadlines
40. The following dates and deadlines
apply:
January 28, 2013.
January 28, 2013; 12:00 noon ET.
February 6, 2013; prior to 6:00 p.m. ET.
March 18, 2013; 6:00 p.m. ET.
April 19, 2013.
April 23, 2013.
II. Short-Form Application (FCC Form
175) Requirements
A. General Information Regarding
Short-Form Applications
42. An application to participate in an
FCC auction, referred to as a short-form
application or FCC Form 175, provides
information used to determine whether
the applicant is legally, technically, and
financially qualified to participate in
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Commission auctions for licenses or
permits. The short-form application is
the first part of the Commission’s twophased auction application process. In
the first phase, parties desiring to
participate in the auction must file a
streamlined, short-form application in
which they certify under penalty of
perjury as to their qualifications. Each
applicant must take seriously its duties
and responsibilities and carefully
determine before filing an application
that it has the legal, technical and
financial resources to participate in the
auction and to construct and operate an
FM station if it becomes a licensee as a
result of its participation in this auction.
Eligibility to participate in bidding is
based on the applicant’s short-form
application and certifications, and on its
upfront payment. In the second phase of
the process, each winning bidder must
file a more comprehensive long-form
application.
43. Every entity and individual
seeking a construction permit available
in Auction 94 must file a short-form
application electronically via the FCC
Auction System prior to 6:00 p.m. ET on
February 6, 2013, following the
procedures prescribed in Attachment B
to the Auction 94 Procedures Public
Notice. If an applicant claims eligibility
for a bidding credit, the information
provided in its FCC Form 175 will be
used to determine whether the applicant
is eligible for the claimed bidding
credit. Applicants filing a short-form
application are subject to the
Commission’s anti-collusion rules
beginning at the deadline for filing.
44. Applicants bear full responsibility
for submitting accurate, complete and
timely short-form applications. All
applicants must certify on their shortform applications under penalty of
perjury that they are legally, technically,
financially and otherwise qualified to
hold a license. Applicants should read
carefully the instructions set forth in
Attachment B to the Auction 94
Procedures Public Notice and should
consult the Commission’s rules to
ensure that all the information required
is included within their short-form
application.
45. An individual or entity may not
submit more than one short-form
application for a single auction. If a
party submits multiple short-form
applications, only one application may
be accepted for filing.
46. Applicants also should note that
submission of a short-form application
(and any amendments thereto)
constitutes a representation by the
certifying official that he or she is an
authorized representative of the
applicant, that he or she has read the
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form’s instructions and certifications,
and that the contents of the application,
its certifications, and any attachments
are true and correct. Applicants are not
permitted to make major modifications
to their applications; such
impermissible changes include a change
of the certifying official to the
application. Submission of a false
certification to the Commission may
result in penalties, including monetary
forfeitures, license forfeitures,
ineligibility to participate in future
auctions, and/or criminal prosecution.
B. Permit Selection
47. An applicant must select the
construction permits on which it wants
to bid from the ‘‘Eligible Permits’’ list on
its short-form application. To assist in
identifying construction permits of
interest that will be available in Auction
94, the FCC Auction System includes a
filtering mechanism that allows an
applicant to filter the ‘‘Eligible Permits’’
list. Selections for one or more of the
filter criteria can be made and the
system will produce a list of
construction permits satisfying the
specified criteria. Any or all of the
construction permits in the filtered
results may be selected. Applicants will
also be able to select construction
permits from one set of filtered results
and then filter on different criteria to
select additional construction permits.
48. Applicants interested in
participating in Auction 94 must have
selected construction permit(s) available
in this auction by the short-form
application filing deadline. Applicants
must review and verify their
construction permit selections before
the deadline for submitting short-form
applications. Construction permit
selections cannot be changed after the
short-form application filing deadline.
The FCC Auction System will not
accept bids on construction permits that
were not selected on the applicant’s
short-form application.
C. New Entrant Bidding Credit
49. The interests of the applicant and
of any individuals or entities with an
attributable interest in the applicant, in
other media of mass communications
are considered when determining an
applicant’s eligibility for the New
Entrant Bidding Credit. In Auction 94,
the bidder’s attributable interests and,
thus, its maximum new entrant bidding
credit eligibility are determined as of
the short-form application filing
deadline. An applicant intending to
divest a media interest or make any
other ownership changes, such as
resignation of positional interests, in
order to avoid attribution for purposes
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of qualifying for the New Entrant
Bidding Credit must have consummated
such divestment transactions or have
completed such ownership changes by
no later than the short-form filing
deadline. Each prospective bidder is
reminded, however, that events
occurring after the short-form filing
deadline, such as the acquisition of
attributable interests in media of mass
communications, may cause
diminishment or loss of the bidding
credit, and must be reported
immediately.
50. Under traditional broadcast
attribution rules, those entities or
individuals with an attributable interest
in a bidder include: (1) All officers and
directors of a corporate bidder; (2) Any
owner of 5 percent or more of the voting
stock of a corporate bidder; (3) All
partners and limited partners of a
partnership bidder, unless the limited
partners are sufficiently insulated; and
(4) All members of a limited liability
company, unless sufficiently insulated.
51. In cases where an applicant’s
spouse or close family member holds
other media interests, such interests are
not automatically attributable to the
bidder. The Commission decides
attribution issues in this context based
on certain factors traditionally
considered relevant. Applicants should
note that the mass media attribution
rules were revised in 1999.
52. Applicants are also reminded that,
by the New Entrant Bidding Credit
Reconsideration Order, the Commission
further refined the eligibility standards
for the New Entrant Bidding Credit,
judging it appropriate to attribute the
media interests held by very substantial
investors in, or creditors of, an applicant
claiming new entrant status.
Specifically, the attributable mass media
interests held by an individual or entity
with an equity and/or debt interest in an
applicant shall be attributed to that
applicant for purposes of determining
its eligibility for the New Entrant
Bidding Credit, if the equity and debt
interests, in the aggregate, exceed 33
percent of the total asset value of the
applicant, even if such an interest is
non-voting.
53. In the Diversity Order, 73 FR
28400, May 16, 2008, the Commission
relaxed the equity/debt plus (EDP)
attribution standard, to allow for higher
investment opportunities in entities
meeting the definition of eligible
entities as set forth in 47 CFR 73.3555
Note 2(i). Consistent with a United
States Court of Appeals decision issued
in July 2011, the relaxed EDP rule for
eligible entities as the basis for the New
Entrant Bidding Credit will be
unavailable in Auction 94.
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54. Generally, media interests will be
attributable for purposes of the New
Entrant Bidding Credit to the same
extent that such other media interests
are considered attributable for purposes
of the broadcast multiple ownership
rules. However, attributable interests
held by a winning bidder in existing
low power television, television
translator or FM translator facilities will
not be counted among the applicant’s
other mass media interests in
determining its eligibility for a New
Entrant Bidding Credit. A medium of
mass communications is defined in
section 73.5008(b). Full service
noncommercial educational stations, on
both reserved and non-reserved
channels, are included among media of
mass communications as defined in
section 73.5008(b).
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D. Application Requirements
55. In addition to the ownership
information required pursuant to 47
CFR 1.2105 and 1.2112, applicants
seeking a New Entrant Bidding Credit
are required to establish on their shortform applications that they satisfy the
eligibility requirements to qualify for
the bidding credit. In those cases, a
certification under penalty of perjury
must be provided in completing the
short-form application. An applicant
claiming that it qualifies for a 35 percent
New Entrant Bidding Credit must certify
that neither it nor any of its attributable
interest holders have any attributable
interests in any other media of mass
communications. An applicant claiming
that it qualifies for a 25 percent New
Entrant Bidding Credit must certify that
neither it nor any of its attributable
interest holders has any attributable
interests in more than three media of
mass communications, and must
identify and describe such media of
mass communications.
i. Bidding Credits
56. Applicants that qualify for the
New Entrant Bidding Credit, as
specified in the applicable rule, are
eligible for a bidding credit that
represents the amount by which a
bidder’s winning bid is discounted. The
size of a New Entrant Bidding Credit
depends on the number of ownership
interests in other media of mass
communications that are attributable to
the bidder-entity and its attributable
interest-holders. A 35 percent bidding
credit will be given to a winning bidder
if it, and/or any individual or entity
with an attributable interest in the
winning bidder, has no attributable
interest in any other media of mass
communications, as defined in 47 CFR
73.5008. A 25 percent bidding credit
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will be given to a winning bidder if it,
and/or any individual or entity with an
attributable interest in the winning
bidder, has an attributable interest in no
more than three mass media facilities, as
defined in 47 CFR 73.5008. No bidding
credit will be given if any of the
commonly owned mass media facilities
serve the same area as the broadcast
permit proposed in the auction, as
defined in 47 CFR 73.5007(b), or if the
winning bidder, and/or any individual
or entity with an attributable interest in
the winning bidder, has attributable
interests in more than three mass media
facilities. For purposes of determining
whether a broadcast permit offered in
this auction is in the same area as an
applicant’s existing mass media
facilities, the coverage area of the to-beauctioned facility is calculated using
maximum class facilities at the
allotment reference coordinates, not any
applicant-specified preferred site
coordinates.
57. Bidding credits are not
cumulative; qualifying applicants
receive either the 25 percent or the 35
percent bidding credit, but not both.
Attributable interests are defined in 47
CFR 73.3555 and note 2 of that section.
Applicants should note that unjust
enrichment provisions apply to a
winning bidder that utilizes a bidding
credit and subsequently seeks to assign
or transfer control of its license or
construction permit to an entity not
qualifying for the same level of bidding
credit.
E. Ownership Disclosure Requirements
58. For purposes of determining
eligibility to participate in a broadcast
auction, all applicants must comply
with the uniform Part 1 ownership
disclosure standards and provide
information required by 47 CFR 1.2105
and 1.2112 . Specifically, in completing
the short-form application, applicants
will be required to fully disclose
information on the real party- or partiesin-interest and ownership structure of
the applicant, including both direct and
indirect ownership interests of 10
percent or more. The ownership
disclosure standards for the short-form
application are prescribed in 47 CFR
1.2105 and 1.2112 of the Commission’s
rules. Each applicant is responsible for
ensuring that information submitted in
its short-form application is complete
and accurate.
59. In certain circumstances, an
applicant’s most current ownership
information on file with the
Commission, if in an electronic format
compatible with the short-form
application (FCC Form 175) (such as
information submitted in an on-line
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FCC Form 602 or in an FCC Form 175
filed for a previous auction using the
FCC Auction System), will
automatically be entered into their
short-form application. Each applicant
must carefully review any information
automatically entered to confirm that it
is complete and accurate as of the
deadline for filing the short-form
application. Any information that needs
to be corrected or updated must be
changed directly in the short-form
application.
F. Provisions Regarding Former and
Current Defaulters
60. Current defaulters or delinquents
are not eligible to participate in Auction
94, but former defaulters or delinquents
can participate so long as they are
otherwise qualified and, make upfront
payments that are fifty percent more
than would otherwise be necessary. An
applicant is considered a ‘‘current
defaulter’’ or a ‘‘current delinquent’’
when it, any of its affiliates, any of its
controlling interests, or any of the
affiliates of its controlling interests, is in
default on any payment for any
Commission construction permit or
license (including a down payment) or
is delinquent on any non-tax debt owed
to any Federal agency as of the filing
deadline for short-form applications. An
applicant is considered a ‘‘former
defaulter’’ or a ‘‘former delinquent’’
when it, any of its affiliates, any of its
controlling interests, or any of the
affiliates of its controlling interests,
have defaulted on any Commission
construction permit or license or been
delinquent on any non-tax debt owed to
any Federal agency, but have since
remedied all such defaults and cured all
of the outstanding non-tax
delinquencies.
61. On the short-form application, an
applicant must certify under penalty of
perjury that it, its affiliates, its
controlling interests, and the affiliates of
its controlling interests, as defined by 47
CFR 1.2110, are not in default on any
payment for a Commission construction
permit or license (including down
payments) and that it is not delinquent
on any non-tax debt owed to any
Federal agency. Each applicant must
also state under penalty of perjury
whether it, its affiliates, its controlling
interests, and the affiliates of its
controlling interests, have ever been in
default on any Commission construction
permit or license or have ever been
delinquent on any non-tax debt owed to
any Federal agency. Prospective
applicants are reminded that
submission of a false certification to the
Commission is a serious matter that may
result in severe penalties, including
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monetary forfeitures, license
revocations, exclusion from
participation in future auctions, and/or
criminal prosecution.
62. Applicants are encouraged to
review the Bureaus’ previous guidance
on default and delinquency disclosure
requirements in the context of the shortform application process. For example,
it has been determined that, to the
extent that Commission rules permit
late payment of regulatory or
application fees accompanied by late
fees, such debts will become delinquent
for purposes of 47 CFR 1.2105(a) and
1.2106(a) only after the expiration of a
final payment deadline. Therefore, with
respect to regulatory or application fees,
the provisions of 47 CFR 1.2105(a) and
1.2106(a) regarding default and
delinquency in connection with
competitive bidding are limited to
circumstances in which the relevant
party has not complied with a final
Commission payment deadline. Parties
are also encouraged to consult with the
Wireless Telecommunications Bureau’s
Auctions and Spectrum Access Division
staff if they have any questions about
default and delinquency disclosure
requirements.
63. The Commission considers
outstanding debts owed to the United
States Government, in any amount, to be
a serious matter. The Commission
adopted rules, including a provision
referred to as the ‘‘red light rule,’’ that
implement its obligations under the
Debt Collection Improvement Act of
1996, which governs the collection of
debts owed to the United States. Under
the red light rule, applications and other
requests for benefits filed by parties that
have outstanding debts owed to the
Commission will not be processed. In
the same rulemaking order, the
Commission explicitly declared,
however, that its competitive bidding
rules ‘‘are not affected’’ by the red light
rule. As a consequence, the
Commission’s adoption of the red light
rule does not alter the applicability of
any of its competitive bidding rules,
including the provisions and
certifications of 47 CFR 1.2105 and
1.2106, with regard to current and
former defaults or delinquencies.
64. Applicants are reminded that the
Commission’s Red Light Display
System, which provides information
regarding debts currently owed to the
Commission, may not be determinative
of an auction applicant’s ability to
comply with the default and
delinquency disclosure requirements of
47 CFR 1.2105. Thus, while the red light
rule ultimately may prevent the
processing of long-form applications by
auction winners, an auction applicant’s
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lack of current ‘‘red light’’ status is not
necessarily determinative of its
eligibility to participate in an auction or
of its upfront payment obligation.
65. Moreover, prospective applicants
in Auction 94 should note that any longform applications filed after the close of
bidding will be reviewed for compliance
with the Commission’s red light rule,
and such review may result in the
dismissal of a winning bidder’s longform application.
G. Optional Applicant Status
Identification
66. Applicants owned by members of
minority groups and/or women, as
defined in 47 CFR 1.2110(c)(3), and
rural telephone companies, as defined
in 47 CFR 1.2110(c)(4), may identify
themselves regarding this status in
filling out their short-form applications.
This applicant status information is
collected for statistical purposes only
and assists the Commission in
monitoring the participation of
‘‘designated entities’’ in its auctions.
H. Noncommercial Educational Status
Election
67. Applications for noncommercial
educational (NCE) FM stations on
nonreserved spectrum, filed during an
FM filing window, will be returned as
unacceptable for filing if mutually
exclusive with any application for a
commercial station. Accordingly, if an
FCC Form 175 filed during the Auction
94 filing window identifying the
application’s proposed station as
noncommercial educational is mutually
exclusive with any application filed
during that window for a commercial
station, the NCE application will be
returned as unacceptable for filing. For
this reason, each prospective applicant
in this auction should consider carefully
if they wish to propose NCE operation
for any FM station acquired in this
auction. This NCE election cannot be
reversed after the initial application
filing deadline.
I. Minor Modifications to Short-Form
Applications
68. After the deadline for filing initial
applications, an Auction 94 applicant is
permitted to make only minor changes
to its application. Permissible minor
changes include, among other things,
deletion and addition of authorized
bidders (to a maximum of three) and
revision of addresses and telephone
numbers of the applicants and their
contact persons. An applicant is not
permitted to make a major modification
to its application (e.g., change of
construction permit selection, change
control of the applicant, change the
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certifying official, claim eligibility for a
higher percentage of bidding credit, or
change the identification of the
application’s proposed facilities as
noncommercial educational) after the
initial application filing deadline. Thus,
any change in control of an applicant—
resulting from a merger, for example,
will be considered a major modification,
and the application will consequently
be dismissed. If an applicant’s shortform application is dismissed, the
applicant would remain subject to the
communication prohibitions of 47 CFR
1.2105(c) until the down payment
deadline.
69. If an applicant wishes to make
permissible minor changes to its shortform application, such changes should
be made electronically to its short-form
application using the FCC Auction
System whenever possible. For the
change to be submitted and considered
by the Commission, be sure to click on
the SUBMIT button.
70. An applicant cannot use the FCC
Auction System outside of the initial
and resubmission filing windows to
make changes to its short-form
application for other than
administrative changes (e.g., changing
certain contact information or the name
of an authorized bidder). If these or
other permissible minor changes need to
be made outside of these windows, the
applicant must submit a letter briefly
summarizing the changes and
subsequently update its short-form
application in the FCC Auction System
once it is available. Moreover, after the
filing window has closed, the system
will not permit applicants to make
certain changes, such as the applicant’s
legal classification and the
identification of the application’s
proposed facilities as noncommercial
educational. Any letter describing
changes to an applicant’s short-form
application must be submitted by email
to auction94@fcc.gov. Any application
amendment and related statements of
fact must be certified by (1) The
applicant, if the applicant is an
individual; (2) one of the partners if the
applicant is a partnership; (3) an officer,
director, or duly authorized employee, if
the applicant is a corporation; (4) a
member who is an officer, if the
applicant is an unincorporated
association; (5) the trustee, if the
applicant is an amateur radio service
club; or (6) a duly elected or appointed
official who is authorized to make such
certifications under the laws of the
applicable jurisdiction, if the applicant
is a governmental entity.
71. Applicants must not submit
application-specific material through
the Commission’s Electronic Comment
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Filing System, which was used for
submitting comments regarding Auction
94.
J. Maintaining Current Information in
Short-Form Applications
72. 47 CFR 1.65 and 1.2105(b) require
an applicant to maintain the accuracy
and completeness of information
furnished in its pending application and
in competitive bidding proceedings to
furnish additional or corrected
information to the Commission within
five days of a significant occurrence, or
to amend a short form application no
more than five days after the applicant
becomes aware of the need for the
amendment. Changes that cause a loss
of or reduction in the percentage of
bidding credit specified on the
originally-submitted application must
be reported immediately, and no later
than five business days after the change
occurs. If an amendment reporting
changes is a ‘‘major amendment,’’ as
defined by 47 CFR 1.2105, the major
amendment will not be accepted and
may result in the dismissal of the
application. After the short-form filing
deadline, applicants may make only
minor changes to their applications. For
changes to be submitted and considered
by the Commission, be sure to click on
the SUBMIT button in the FCC Auction
System. In addition, an applicant cannot
update its short-form application using
the FCC Auction System after the initial
and resubmission filing windows close.
If information needs to be submitted
pursuant to 47 CFR 1.65 after these
windows close, a letter briefly
summarizing the changes must be
submitted by email to
auction94@fcc.gov. This email must
include a subject or caption referring to
Auction 94 and the name of the
applicant.
III. Pre-Auction Procedures
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A. Online Auction Tutorial—Available
January 28, 2013
73. On Monday, January 28, 2013, an
educational auction tutorial will be
available on the Auction 94 web page
for prospective bidders to familiarize
themselves with the auction process.
This online tutorial will provide
information about pre-auction
procedures, completing short-form
applications, auction conduct, the FCC
Auction Bidding System, auction rules,
and broadcast services rules. The
tutorial will also provide an avenue to
ask FCC staff questions about the
auction, auction procedures, filing
requirements, and other matters related
to this auction. Once posted, this
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tutorial will remain accessible for
reference prior to Auction 94.
B. Short-Form Applications—Due Prior
to 6:00 p.m. ET on February 6, 2013
74. In order to be eligible to bid in this
auction, applicants must first follow the
procedures set forth in Attachment B to
the Auction 94 Procedures Public Notice
to submit a short-form application (FCC
Form 175) electronically via the FCC
Auction System. This short-form
application must be submitted prior to
6:00 p.m. ET on February 6, 2013. Late
applications will not be accepted. No
application fee is required, but an
applicant must submit a timely upfront
payment to be eligible to bid.
75. Applications may generally be
filed at any time beginning at noon ET
on January 28, 2013, until the filing
window closes at 6:00 p.m. ET on
February 6, 2013. Applicants are
strongly encouraged to file early and are
responsible for allowing adequate time
for filing their applications.
Applications can be updated or
amended multiple times until the filing
deadline on February 6, 2013.
76. An applicant must always click on
the SUBMIT button on the ‘‘Certify &
Submit’’ screen to successfully submit
its FCC Form 175 and any
modifications; otherwise the application
or changes to the application will not be
received or reviewed by Commission
staff. Additional information about
accessing, completing, and viewing the
FCC Form 175 is included in
Attachment B of the Auction 94
Procedures Public Notice. FCC Auctions
Technical Support is available at (877)
480–3201, option nine; (202) 414–1250;
or (202) 414–1255 (text telephone
(TTY)); hours of service are Monday
through Friday, from 8:00 a.m. to 6:00
p.m. ET. In order to provide better
service to the public, all calls to
Technical Support are recorded.
C. Application Processing and Minor
Corrections
77. After the deadline for filing FCC
Form 175 applications, the Commission
will process all timely submitted
applications to determine which are
complete, and subsequently will issue a
public notice identifying (1) Those that
are complete; (2) those that are rejected;
and (3) those that are incomplete or
deficient because of minor defects that
may be corrected. The public notice will
include the deadline for resubmitting
corrected applications.
78. Non-mutually exclusive
applications will be listed in a
subsequent public notice to be released
by the Bureaus. Such applications will
not proceed to auction, but will proceed
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in accordance with instructions set forth
in that public notice. All mutually
exclusive applications will be
considered under the relevant
procedures for conflict resolution.
Mutually exclusive applications
proposing commercial stations will
proceed to auction.
79. After the application filing
deadline on February 6, 2013,
applicants can make only minor
corrections to their applications. They
will not be permitted to make major
modifications (e.g., change construction
permit selection, change control of the
applicant, change the certifying official,
claim eligibility for a higher percentage
of bidding credit, or change
identification of the application’s
proposed facilities as NCE).
80. Commission staff will
communicate only with an applicant’s
contact person or certifying official, as
designated on the short-form
application, unless the applicant’s
certifying official or contact person
notifies the Commission in writing that
applicant’s counsel or other
representative is authorized to speak on
its behalf. Authorizations may be sent
by email to auction94@fcc.gov.
D. Upfront Payments—Due March 18,
2013
81. In order to be eligible to bid in this
auction, an upfront payment must be
submitted and accompanied by an FCC
Remittance Advice Form (FCC Form
159). After completing its short-form
application, an applicant will have
access to an electronic version of the
FCC Form 159 that can be printed and
sent by fax to U.S. Bank in St. Louis,
Missouri. All upfront payments must be
made as instructed in the Auction 94
Procedures Public Notice and must be
received in the proper account at U.S.
Bank before 6:00 p.m. ET on March 18,
2013.
i. Making Upfront Payments by Wire
Transfer
82. Wire transfer payments must be
received before 6:00 p.m. ET on March
18, 2013. No other payment method is
acceptable. To avoid untimely
payments, applicants should discuss
arrangements (including bank closing
schedules) with their bankers several
days before they plan to make the wire
transfer, and allow sufficient time for
the transfer to be initiated and
completed before the deadline. At least
one hour before placing the order for the
wire transfer (but on the same business
day), applicants must fax a completed
FCC Form 159 (Revised 2/03) to U.S.
Bank at (314) 418–4232. On the fax
cover sheet, write Wire Transfer—
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Auction Payment for Auction 94. In
order to meet the upfront payment
deadline, an applicant’s payment must
be credited to the Commission’s account
for Auction 94 before the deadline.
83. Each applicant is responsible for
ensuring timely submission of its
upfront payment and for timely filing of
an accurate and complete FCC
Remittance Advice Form (FCC Form
159). An applicant should coordinate
with its financial institution well ahead
of the due date regarding its wire
transfer and allow sufficient time for the
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. Each
applicant also is responsible for
obtaining confirmation from its
financial institution that its wire
transfer to U.S. Bank was successful and
from Commission staff that its upfront
payment was timely received and that it
was deposited into the proper account.
84. All payments must be in U.S.
dollars. All payments must be made by
wire transfer. Upfront payments for
Auction 94 go to a lockbox number
different from the lockbox used in
previous FCC auctions. Failure to
deliver a sufficient upfront payment as
instructed by the March 18, 2013,
deadline will result in dismissal of the
short-form application and
disqualification from participation in
the auction.
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ii. FCC Form 159
85. An accurate and complete FCC
Remittance Advice Form (FCC Form
159, Revised 2/03) must be faxed to U.S.
Bank to accompany each upfront
payment. Proper completion of this
form is critical to ensuring correct
crediting of upfront payments. Detailed
instructions for completion of FCC Form
159 are included in Attachment C of the
Auction 94 Procedures Public Notice.
An electronic pre-filled version of the
FCC Form 159 is available after
submitting the FCC Form 175. Payers
using the pre-filled FCC Form 159 are
responsible for ensuring that all of the
information on the form, including
payment amounts, is accurate. The FCC
Form 159 can be completed
electronically, but it must be filed with
U.S. Bank by fax.
iii. Upfront Payments and Bidding
Eligibility
86. Applicants must make upfront
payments sufficient to obtain bidding
eligibility on the construction permits
on which they will bid. The amount of
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the upfront payment would determine a
bidder’s initial bidding eligibility, the
maximum number of bidding units on
which a bidder may place bids. In order
to bid on a particular construction
permit, a qualified bidder must have
selected the construction permit on its
FCC Form 175 and must have a current
eligibility level that meets or exceeds
the number of bidding units assigned to
that construction permit. At a
minimum, therefore, an applicant’s total
upfront payment must be enough to
establish eligibility to bid on at least one
of the construction permits selected on
its FCC Form 175, or else the applicant
will not be eligible to participate in the
auction. An applicant does not have to
make an upfront payment to cover all
construction permits the applicant
selected on its FCC Form 175, but only
enough to cover the maximum number
of bidding units that are associated with
construction permits on which they
wish to place bids and hold
provisionally winning bids in any given
round. The total upfront payment does
not affect the total dollar amount the
bidder may bid on any given
construction permit.
87. The specific upfront payment
amounts and bidding units for each
construction permit are set forth in
Attachment A of the Auction 94
Procedures Public Notice.
88. In calculating its upfront payment
amount, an applicant should determine
the maximum number of bidding units
on which it may wish to be active (bid
on or hold provisionally winning bids
on) in any single round, and submit an
upfront payment amount covering that
number of bidding units. In order to
make this calculation, an applicant
should add together the bidding units
for all construction permits on which it
seeks to be active in any given round.
Applicants should check their
calculations carefully, as there is no
provision for increasing a bidder’s
eligibility after the upfront payment
deadline.
89. If an applicant is a former
defaulter, it must calculate its upfront
payment for all of its identified
construction permits by multiplying the
number of bidding units on which it
wishes to be active by 1.5. In order to
calculate the number of bidding units to
assign to former defaulters, the
Commission will divide the upfront
payment received by 1.5 and round the
result up to the nearest bidding unit.
E. Applicant’s Wire Transfer
Information for Purposes of Refunds of
Upfront Payments
90. To ensure that refunds of upfront
payments are processed in an
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expeditious manner, the Commission is
requesting that all pertinent information
be supplied. Applicants can provide the
information electronically during the
initial short-form application filing
window after the form has been
submitted. (Applicants are reminded
that information submitted as part of an
FCC Form 175 will be available to the
public; for that reason, wire transfer
information should not be included in
an FCC Form 175.) Specific instructions
were provided in the Auction 94
Procedures Public Notice for the
submission of wire transfer instructions
by fax.
F. Auction Registration
91. Approximately ten days before the
auction, the Bureaus will issue a public
notice announcing all qualified bidders
for the auction. Qualified bidders are
those applicants with submitted FCC
Form 175 applications that are deemed
timely-filed, accurate, and complete,
provided that such applicants have
timely submitted an upfront payment
that is sufficient to qualify them to bid.
92. All qualified bidders are
automatically registered for the auction.
Registration materials will be
distributed prior to the auction by
overnight mail. The mailing will be sent
only to the contact person at the contact
address listed in the FCC Form 175 and
will include the SecurID® tokens that
will be required to place bids, the
‘‘Integrated Spectrum Auction System
(ISAS) Bidder’s Guide,’’ and the
Auction Bidder Line phone number.
93. Qualified bidders that do not
receive this registration mailing will not
be able to submit bids. Therefore, if this
mailing is not received by noon on
Wednesday, April 17, 2013, call the
Auctions Hotline at (717) 338–2868.
Receipt of this registration mailing is
critical to participating in the auction,
and each applicant is responsible for
ensuring it has received all of the
registration material.
94. In the event that SecurID® tokens
are lost or damaged, only a person who
has been designated as an authorized
bidder, the contact person, or the
certifying official on the applicant’s
short-form application may request
replacements. To request replacement of
these items, call Technical Support at
(877) 480–3201, option nine; (202) 414–
1250; or (202) 414–1255 (TTY).
G. Remote Electronic Bidding
95. The Commission will conduct this
auction over the Internet, and
telephonic bidding will be available as
well. Only qualified bidders are
permitted to bid. Each applicant should
indicate its bidding preference—
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electronic or telephonic—on its FCC
Form 175. In either case, each
authorized bidder must have its own
SecurID® token, which the Commission
will provide at no charge. Each
applicant with one authorized bidder
will be issued two SecurID® tokens,
while applicants with two or three
authorized bidders will be issued three
tokens. For security purposes, the
SecurID® tokens, the telephonic bidding
telephone number, and the ‘‘Integrated
Spectrum Auction System (ISAS)
Bidder’s Guide’’ are only mailed to the
contact person at the contact address
listed on the FCC Form 175. Each
SecurID® token is tailored to a specific
auction. SecurID® tokens issued for
other auctions or obtained from a source
other than the FCC will not work for
Auction 94.
i. Simultaneous Multiple Round
Auction
98. In Auction 94, all construction
permits will be auctioned in a single
auction using the Commission’s
standard simultaneous multiple-round
auction format. This type of auction
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. A
bidder may bid on, and potentially win,
any number of construction permits.
The Bureaus received no comment on
this proposal, and this proposal is
adopted. Unless otherwise announced,
bids will be accepted on all construction
permits in each round of the auction
until bidding stops on every
construction permit.
bidding units) for Auction 94. The
amount of the upfront payment
submitted by a bidder determines initial
bidding eligibility, the maximum
number of bidding units on which a
bidder may be active. As noted earlier,
each construction permit is assigned a
specific number of bidding units as
listed in Attachment A of the Auction
94 Procedures Public Notice. Bidding
units assigned to each construction
permit do not change as prices rise
during the auction. Upfront payments
are not attributed to specific
construction permits. Rather, a bidder
may place bids on any of the
construction permits selected on its FCC
Form 175 as long as the total number of
bidding units associated with those
construction permits does not exceed its
current eligibility.
100. In order to ensure that an 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. Bidders are
required to be active on a specific
percentage of their current bidding
eligibility during each round of the
auction. The Bureaus proposed a 100
percent activity requirement.
101. The Bureaus declined one
commenter’s suggestion that they
should require an upfront payment
covering of all the permits selected by
an applicant in its FCC Form 175.
Allowing each applicant to submit an
upfront payment that covers the
maximum number of bidding units on
which it may wish to be active in any
given round affords bidders the
flexibility to pursue backup strategies—
not unlike having an activity
requirement below 100%.
102. The Bureaus also chose not to
adopt their proposal to have a 100%
activity requirement in response to
concerns raised by a commenter.
Instead, the Bureaus adopt two activity
requirements: an 80% requirement for
the beginning of the auction and a 95%
requirement that will be used later in
the auction. The Bureaus will
implement these requirements using
two ‘‘auction stages.’’
103. When the Bureaus move the
auction from Stage One to Stage Two,
they will first alert bidders by
announcement in the bidding system.
The Bureaus have the discretion to
further alter the activity requirements
before and/or during the auction as
circumstances warrant.
ii. Eligibility and Activity Rules
99. The Bureaus will use upfront
payments to determine initial
(maximum) eligibility (as measured in
iii. Activity Rule Waivers
104. The Bureaus decided to provide
bidders in Auction 94 with three
activity rule waivers. Use of an activity
H. Mock Auction—April 19, 2013
96. All qualified bidders will be
eligible to participate in a mock auction
on Friday, April 19, 2013. The mock
auction will enable bidders to become
familiar with the FCC Auction System
prior to the auction. The Bureaus
strongly recommend that all bidders
participate in the mock auction. Details
will be announced by public notice.
IV. Auction
97. The first round of bidding for
Auction 94 will begin on Tuesday, April
23, 2013. The initial bidding schedule
will be announced in a public notice
listing the qualified bidders, which is
released approximately 10 days before
the start of the auction.
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A. Auction Structure
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rule waiver preserves the bidder’s
eligibility despite its activity in the
current round being below the required
minimum activity level. An activity rule
waiver applies to an entire round of
bidding and not to a particular
construction permit. Waivers can be
either proactive or automatic and are
principally a mechanism for auction
participants to avoid the loss of bidding
eligibility in the event that exigent
circumstances prevent them from
placing a bid in a particular round.
105. The FCC Auction System
assumes that a bidder with insufficient
activity would prefer to apply 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. If no waivers
remain and the activity requirement is
not satisfied, the FCC Auction System
will permanently reduce the bidder’s
eligibility, possibly curtailing or
eliminating the ability to place
additional bids in the auction.
106. A bidder with insufficient
activity may wish to reduce its bidding
eligibility rather than use an activity
rule waiver. If so, the bidder must
affirmatively override the automatic
waiver mechanism during the bidding
round by using the reduce eligibility
function in the FCC Auction System. In
this case, the bidder’s eligibility is
permanently reduced to bring it into
compliance with the activity rule.
Reducing eligibility is an irreversible
action; once eligibility has been
reduced, a bidder will not be permitted
to regain its lost bidding eligibility, even
if the round has not yet closed.
107. Finally, a bidder may apply an
activity rule waiver proactively as a
means to keep the auction open without
placing a bid. If a proactive waiver is
applied (using the ‘‘apply waiver’’
function in the FCC Auction System)
during a bidding round in which no
bids are placed, the auction will remain
open and the bidder’s eligibility will be
preserved. However, an automatic
waiver applied by the FCC Auction
System in a round in which there are no
new bids or proactive waivers will not
keep the auction open. A bidder cannot
submit a proactive waiver after bidding
in a round, and applying a proactive
waiver will preclude it from placing any
bids in that round. Applying a waiver is
irreversible; once a bidder submits a
proactive waiver, the bidder cannot
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unsubmit the waiver even if the round
has not yet ended.
iv. Auction Stopping Rules
108. For Auction 94, the Bureaus will
employ a simultaneous stopping rule
approach, which means all construction
permits remain available for bidding
until bidding stops simultaneously on
every construction permit. More
specifically, bidding will close on all
construction permits after the first
round in which no bidder submits any
new bids or applies a proactive waiver.
109. The Bureaus also sought
comment on alternative versions of the
simultaneous stopping rule for Auction
94. Under Option1, the auction would
close for all construction permits after
the first round in which no bidder
applies a proactive waiver or places any
new bids on any construction permit on
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.
110. Under Option 2, the auction
would close for all construction permits
after the first round in which no bidder
applies a waiver or places any new bids
on any construction permit that is not
FCC held. Thus, absent any other
bidding activity, a bidder placing a new
bid on a construction permit that does
not already have a provisionally
winning bid (an ‘‘FCC-held’’
construction permit) would not keep the
auction open under this modified
stopping rule.
111. Under Option 3, the auction
would close using a modified version of
the simultaneous stopping rule that
combines 1 and 2.
112. Under Option 4, the auction
would end after a specified number of
additional rounds. If the Bureaus invoke
this special stopping rule, it will accept
bids in the specified final round(s), after
which the auction will close.
113. Under Option 5, the auction
would remain open even if no bidder
places any new bids or applies a waiver.
In this event, the effect will be the same
as if a bidder had applied a waiver.
Thus, the activity rule will apply as
usual, and a bidder with insufficient
activity will either lose bidding
eligibility or use a waiver.
114. The Bureaus proposed to
exercise these options only in certain
circumstances, for example, where the
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
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prematurely. Before exercising these
options, The Bureaus are likely to
attempt to change the pace of the
auction. For example, the Bureaus may
adjust the pace of bidding by changing
the number of bidding rounds per day
and/or the minimum acceptable bids.
The Bureaus retain the discretion to
exercise any of these options with or
without prior announcement during the
auction. The Bureaus received no
comment on these proposals and adopt
them for Auction 94.
v. Auction Delay, Suspension, or
Cancellation
115. The Bureaus by public notice or
by announcement during the auction,
they 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.
B. Bidding Procedures
i. Round Structure
116. The initial schedule of bidding
rounds will be announced in the public
notice listing the qualified bidders,
which is released approximately 10
days before the start of the auction. Each
bidding round is followed by the release
of round results. Multiple bidding
rounds may be conducted each day.
117. The Bureaus have 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. The Bureaus may
change 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.
ii. Reserve Price and Minimum Opening
Bids
118. The Bureaus did not propose to
establish reserve prices for the
construction permits in Auction 94. The
Bureaus did establish minimum
opening bids for each construction
permit, reasoning that a minimum
opening bid, which has been used in
other auctions, is an effective tool for
accelerating the competitive bidding
process. The Bureaus sought comment
on the proposed minimum opening
bids.
119. In response to specific concerns
raised by commenters concerning the
Bureaus’ proposed minimum opening
bid amounts for particular permits, the
Bureaus adopted a minimum opening
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bid for MM–FM1057–A, at Oak Harbor,
Washington, of $15,000, a minimum
opening bid for MM–FM1058–A, at
Sedro-Woolley, Washington, of $5,000,
and a minimum opening bid for MM–
FM1059–A, at Sequim, Washington, of
$1,500.
120. For the rest of the construction
permits, the Bureaus adopted the
minimum opening bid amounts
proposed in the Auction 94 Comment
Public Notice. The specific minimum
opening bid amounts for all the
construction permits available in
Auction 94 are again specified in
Attachment A to the Auction 94
Procedures Public Notice.
iii. Bid Amounts
121. In each round, an eligible bidder
will be able to place a bid on a given
construction permit in any of up to nine
different amounts The first of the
acceptable bid amounts is called the
minimum acceptable bid amount. The
minimum acceptable bid amount for a
construction permit will be equal to its
minimum opening bid amount until
there is a provisionally winning bid for
the construction permit. After there is a
provisionally winning bid for a permit,
the minimum acceptable bid amount
will be a certain percentage higher. That
is, the minimum acceptable bid amount
will be calculated by multiplying the
provisionally winning bid amount times
one plus the minimum acceptable bid
percentage. For example, if the
minimum acceptable bid percentage is
10 percent, the minimum acceptable bid
amount will equal (provisionally
winning bid amount) * (1.10), rounded.
122. The eight additional bid amounts
are calculated using the minimum
acceptable bid amount and a bid
increment percentage, which need not
be the same as the percentage used to
calculate the minimum acceptable
amount. The first additional acceptable
bid amount equals the minimum
acceptable bid amount times one plus
the bid increment percentage, rounded.
If, for example, the bid increment
percentage is 5 percent, the calculation
is (minimum acceptable bid amount) *
(1 + 0.05), rounded, or (minimum
acceptable bid amount) * 1.05, rounded;
the second additional acceptable bid
amount equals the minimum acceptable
bid amount times one plus two times
the bid increment percentage, rounded,
or (minimum acceptable bid amount) *
1.10, rounded; the third additional
acceptable bid amount equals the
minimum acceptable bid amount times
one plus three times the bid increment
percentage, rounded, or (minimum
acceptable bid amount) * 1.15, rounded;
etc. The Bureaus will round the results
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of these calculations using the standard
rounding procedures for auctions.
123. 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.
The Bureaus proposed to retain the
discretion to do so on a construction
permit-by-construction permit basis.
The Bureaus 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. For example, the Bureaus
could set a $10,000 limit on increases in
minimum acceptable bid amounts over
provisionally winning bids. Thus, if
calculating a minimum acceptable bid
using the minimum acceptable bid
percentage results in a minimum
acceptable bid amount that is $12,000
higher than the provisionally winning
bid on a construction permit, the
minimum acceptable bid amount would
instead be capped at $10,000 above the
provisionally winning bid. If the
Bureaus exercise this discretion, the
Bureaus will alert bidders by an
announcement in the FCC Auction
System during the auction.
iv. Provisionally Winning Bids
124. At the end of each bidding
round, a ‘‘provisionally winning bid’’
will be determined based on the highest
bid amount received for each
construction permit. A provisionally
winning bid will remain the
provisionally winning bid until there is
a higher bid on the same construction
permit at the close of a subsequent
round. Provisionally winning bids at the
end of the auction become the winning
bids. Bidders are reminded that
provisionally winning bids count
toward activity for purposes of the
activity rule.
125. The Bureaus will use a random
number generator to select a single
provisionally winning bid in the event
of identical high bid amounts being
submitted on a construction permit in a
given round (i.e., tied bids).
Specifically, the FCC Auction System
will assign a random number to each
bid upon submission. The tied bid with
the highest random number wins the
tiebreaker, and becomes the
provisionally winning bid. Bidders,
regardless of whether they hold a
provisionally winning bid, can submit
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15:22 Jan 09, 2013
Jkt 229001
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.
v. Bidding
126. All bidding will take place
remotely either through the FCC
Auction System or by telephonic
bidding. There will be no on-site
bidding during Auction 94. Please note
that telephonic bid assistants are
required to use a script when entering
bids placed by telephone. Telephonic
bidders are therefore reminded to allow
sufficient time to bid by placing their
calls well in advance of the close of a
round. The length of a call to place a
telephonic bid may vary; please allow a
minimum of ten minutes.
127. A bidder’s ability to bid on
specific construction permits is
determined by two factors: (1) The
construction permits selected on the
bidder’s FCC Form 175 and (2) the
bidder’s eligibility. The bid submission
screens will allow bidders to submit
bids on only those construction permits
the bidder selected on its FCC Form
175.
128. In order to access the bidding
function of the FCC Auction System,
bidders must be logged in during the
bidding round using the passcode
generated by the SecurID® token and a
personal identification number (‘‘PIN’’)
created by the bidder. Bidders are
strongly encouraged to print a ‘‘round
summary’’ for each round after they
have completed all of their activity for
that round.
129. In each round, eligible bidders
will be able to place bids on a given
construction permit in any of up to nine
pre-defined bid amounts. For each
construction permit, the FCC Auction
System will list the acceptable bid
amounts in a drop-down box. Bidders
use the drop-down box to select from
among the acceptable bid amounts. The
FCC Auction System also includes an
‘‘upload’’ function that allows text files
containing bid information to be
uploaded.
130. Until a bid has been placed on
a construction permit, the minimum
acceptable bid amount for that permit
will be equal to its minimum opening
bid amount. Once there are bids on a
permit, minimum acceptable bids for
the following round will be determined.
131. During a round, an eligible
bidder may submit bids for as many
construction permits as it wishes
(providing that it is eligible to bid on the
specific permits), remove bids placed in
the current bidding round, or
permanently reduce eligibility. If
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Frm 00022
Fmt 4703
Sfmt 4703
multiple bids are submitted for the same
construction permit in the same round,
the system takes the last bid entered as
that bidder’s bid for the round. Bidding
units associated with construction
permits for which the bidder has
removed bids do not count towards
current activity.
vi. Bid Removal and Bid Withdrawal
132. In Auction 94, each bidder with
the option of removing any bids placed
in a round provided that such bids are
removed before the close of that bidding
round. By using the ‘‘remove bids’’
function in the FCC Auction System, a
bidder may effectively unsubmit any bid
placed within that round. A bidder
removing a bid placed in the same
round is not subject to withdrawal
payments. Removing a bid will affect a
bidder’s activity because a removed bid
no longer counts toward bidding
activity for the round. Once a round
closes, a bidder may no longer remove
a bid.
133. The Bureaus will prohibit
bidders from withdrawing any bids after
the round in which the bids were placed
has closed. Bidders are cautioned to
select bid amounts carefully because no
bid withdrawals will be allowed, even
if a bid was mistakenly or erroneously
made.
vii. Round Results
134. Reports reflecting bidders’
identities for Auction 94 will be
available before and during the auction.
Thus, bidders will know in advance of
this auction the identities of the bidders
against which they are bidding.
135. Bids placed during a round will
not be made public until the conclusion
of that round. After a round closes, the
Bureaus will compile reports of all bids
placed, current provisionally winning
bids, new minimum acceptable bid
amounts for the following round,
whether the construction permit is FCC
held, and bidder eligibility status
(bidding eligibility and activity rule
waivers), and post the reports for public
access.
viii. Auction Announcements
136. The Commission will use auction
announcements to report necessary
information such as schedule changes.
All auction announcements will be
available by clicking a link in the FCC
Auction System.
V. Post-Auction Procedures
137. Shortly after bidding has ended,
the Commission will issue a public
notice declaring the auction closed,
identifying the winning bidders, and
establishing the deadlines for
E:\FR\FM\10JAN1.SGM
10JAN1
Federal Register / Vol. 78, No. 7 / Thursday, January 10, 2013 / Notices
payment for defaults in Auction 94 is
Twenty percent of the applicable bid.
submitting down payments, final
payments, and the long-form
applications (FCC Forms 301).
A. Down Payments
138. Within ten business days after
release of the auction closing public
notice, each winning bidder must
submit sufficient funds (in addition to
its upfront payment) to bring its total
amount of money on deposit with the
Commission for Auction 94 to twenty
percent of the net amount of its winning
bids (gross bids less any applicable new
entrant bidding credits).
B. Final Payments
139. Each winning bidder will be
required to submit the balance of the net
amount of its winning bids within ten
business days after the applicable
deadline for submitting down payments.
C. Long-Form Application (FCC Form
301)
140. The Commission’s rules
currently provide that within thirty days
following the close of bidding and
notification to the winning bidders,
unless a longer period is specified by
public notice, winning bidders must
electronically submit a properly
completed long-form application (FCC
Form 301, Application for Construction
Permit for Commercial Broadcast
Station), and required exhibits for each
construction permit won through
Auction 94. Winning bidders claiming
new entrant status must include an
exhibit demonstrating their eligibility
for the bidding credit. Further
instructions on these and other filing
requirements will be provided to
winning bidders in the auction closing
public notice.
wreier-aviles on DSK5TPTVN1PROD with
D. Default and Disqualification
141. Any winning bidder that defaults
or is disqualified after the close of the
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)
will be subject to the payments
described in 47 CFR 1.2104(g)(2). This
payment consists of a deficiency
payment, equal to the difference
between the amount of the Auction 94
bidder’s winning 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. The percentage of the applicable
bid to be assessed as an additional
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15:22 Jan 09, 2013
Jkt 229001
2273
Bank of Whitewater, both in
Whitewater, Kansas.
E. Refund of Remaining Upfront
Payment Balance
142. After the auction, applicants that
are not winning bidders or are winning
bidders whose upfront payment
exceeded the total net amount of their
winning bids may be entitled to a
refund of some or all of their upfront
payment. All refunds will be returned to
the payer of record, as identified on the
FCC Form 159, unless the payer submits
written authorization instructing
otherwise. Bidders that drop out of the
auction completely (have exhausted all
of their activity rule waivers and have
no remaining bidding eligibility) may
request a refund of their upfront
payments before the close of the
auction.
Board of Governors of the Federal Reserve
System, January 7, 2013.
Margaret McCloskey Shanks,
Deputy Secretary of the Board.
Federal Communications Commission.
Gary D. Michaels,
Deputy Chief, Auctions and Spectrum Access
Division, WTB.
[FR Doc. 2013–00347 Filed 1–9–13; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL RESERVE SYSTEM
Change in Bank Control Notices;
Acquisitions of Shares of a Bank or
Bank Holding Company
The notificants listed below have
applied under the Change in Bank
Control Act (12 U.S.C. 1817(j)) and
§ 225.41 of the Board’s Regulation Y (12
CFR 225.41) to acquire shares of a bank
or bank holding company. The factors
that are considered in acting on the
notices are set forth in paragraph 7 of
the Act (12 U.S.C. 1817(j)(7)).
The notices are available for
immediate inspection at the Federal
Reserve Bank indicated. The notices
also will be available for inspection at
the offices of the Board of Governors.
Interested persons may express their
views in writing to the Reserve Bank
indicated for that notice or to the offices
of the Board of Governors. Comments
must be received not later than January
25, 2013.
A. Federal Reserve Bank of Kansas
City (Dennis Denney, Assistant Vice
President) 1 Memorial Drive, Kansas
City, Missouri 64198–0001:
1. The Donald L. Patry Revocable
Trust; Ellen M. Patry Revocable Trust,
and Ellen Patry, trustee, all of Newton,
Kansas; Corey Patry, Wichita, Kansas;
Brandon Patry, and Katie Patry, both of
Valley Center, Kansas, as a group acting
in concert, to retain voting shares of
Whitewater Bancshares, Inc., and
thereby indirectly retain voting shares of
PO 00000
Frm 00023
Fmt 4703
Sfmt 4703
[FR Doc. 2013–00331 Filed 1–9–13; 8:45 am]
BILLING CODE 6210–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
[Docket No. FDA–2012–P–1189]
Canned Tuna Deviating From Identity
Standard; Temporary Permit for Market
Testing
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Notice.
The Food and Drug
Administration (FDA or we) received an
application for a temporary permit from
Chicken of the Sea International (the
applicant). We are announcing that we
have issued a temporary permit to the
applicant to market test products
(designated as ‘‘no drain canned tuna’’
products) that deviate from the U.S.
standard of identity for canned tuna.
The purpose of the temporary permit is
to market test the product throughout
the United States. The permit will allow
the applicant to measure consumer
acceptance of the new product and
assess the new product’s commercial
feasibility.
SUMMARY:
This permit is effective for 15
months, beginning on the date the
applicant introduces or causes the
introduction of one or more of the test
products into interstate commerce, but
not later than April 10, 2013.
FOR FURTHER INFORMATION CONTACT:
Loretta A. Carey, Center for Food Safety
and Applied Nutrition (HFS–820), Food
and Drug Administration, 5100 Paint
Branch Pkwy., College Park, MD 20740,
240–402–2371.
SUPPLEMENTARY INFORMATION: We are
giving notice that we have issued a
temporary permit to Chicken of the Sea
International, 9330 Scranton Rd., suite
500, San Diego, CA 92121–7706. We are
issuing the temporary permit in
accordance with 21 CFR 130.17, which
addresses temporary permits for
interstate shipment of experimental
packs of food varying from the
requirements of standards of identity
issued under section 401 of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C.
341).
DATES:
E:\FR\FM\10JAN1.SGM
10JAN1
Agencies
[Federal Register Volume 78, Number 7 (Thursday, January 10, 2013)]
[Notices]
[Pages 2260-2273]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00347]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
[AU Docket No. 12-239; DA 12-1865]
Auction of FM Broadcast Construction Permits Rescheduled for
April 23, 2013; Notice of Filing Requirements, Minimum Opening Bids,
Upfront Payments, and Other Procedures for Auction 94
AGENCY: Federal Communications Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This document announces the auction of certain FM broadcast
construction permits. This document is intended to familiarize
prospective applicants with the procedures and other requirements for
participation in Auction 94.
DATES: Applications to participate in Auction 94 must be filed prior to
6:00 p.m. Eastern Time (ET) on February 6, 2013. Bidding for
construction permits in Auction 94 is scheduled to begin on April 23,
2013.
FOR FURTHER INFORMATION CONTACT: Wireless Telecommunications Bureau,
Auctions and Spectrum Access Division: For auction legal questions:
Howard Davenport at (202) 418-0660; for general auction questions: Jeff
Crooks at (202) 418-0660 or Linda Sanderson at (717) 338-2868. Media
Bureau, Audio
[[Page 2261]]
Division: For FM service rule questions: Lisa Scanlan or Tom Nessinger
at (202) 418-2700.
SUPPLEMENTARY INFORMATION: This is a summary of the Auction 94
Procedures Public Notice released on November 21, 2012. The complete
text of the Auction 94 Procedures Public Notice, including an
attachment and related Commission documents, is available for public
inspection and copying from 8:00 a.m. to 4:30 p.m. Eastern Time (ET)
Monday through Thursday or from 8:00 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 94 Procedures 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: https://www.BCPIWEB.com. When ordering documents from
BCPI, please provide the appropriate FCC document number, for example,
DA 12-1865. The Auction 94 Procedures Public Notice and related
documents also are available on the Internet at the Commission's Web
site: https://wireless.fcc.gov/auctions/94/, or by using the search
function for AU Docket No. 12-1865 on the Commission's Electronic
Comment Filing System (ECFS) web page at https://www.fcc.gov/cgb/ecfs/.
I. General Information
A. Introduction
1. On September 11, 2012, the Wireless Telecommunications and Media
Bureaus (the Bureaus) released a public notice seeking comment on
competitive bidding procedures to be used in Auction 94. Six parties
submitted seven comments in response to the Auction 94 Comment Public
Notice, 77 FR 60690, October 4, 2012.
2. On November 21, 2012, The Bureaus released a public notice that
established the procedures and minimum opening bid amounts for the
upcoming auction of certain FM broadcast construction permits and
announced a revised auction schedule. This auction, which is designated
as Auction 94, is now scheduled to start on April 23, 2013.
Construction Permits in Auction 94
3. Auction 94 will offer 112 construction permits in the FM
broadcast service. The construction permits to be auctioned, which are
listed in Attachment A of the Auction 94 Procedures Public Notice, are
for 112 new FM allotments, including 25 construction permits that were
offered but not sold or were defaulted upon in prior auctions. These
construction permits are for vacant FM allotments, reflecting FM
channels assigned to the Table of FM Allotment.
4. Attachment A to the Auction 94 Procedures Public Notice reflects
changes to the list of construction permits that were proposed for this
auction. The Bureaus have removed five construction permits from the
list of construction permits that were proposed for inclusion in this
auction. The Auction 94 Comment Public Notice explains the Bureaus'
rationale for removing certain permits and not offering those five
permits in Auction 94.
5. Applicants may apply for any vacant FM allotment listed in
Attachment A of the Auction 94 Procedures Public Notice. When two or
more short-form applications (FCC Form 175) specifying the same FM
allotment are accepted for filing, mutual exclusivity exists for
auction purposes and that construction permit must be awarded by
competitive bidding procedures. Once mutual exclusivity exists for
auction purposes, even if only one applicant for a particular
construction permit submits an upfront payment, that applicant is
required to submit a bid in order to obtain the permit.
B. Rules and Disclaimers
i. Relevant Authority
6. Prospective applicants must familiarize themselves thoroughly
with the Commission's general competitive bidding rules, including
recent amendments and clarifications, as well as Commission decisions
in proceedings regarding competitive bidding procedures, application
requirements, and obligations of Commission licensees. Broadcasters
should also familiarize themselves with the Commission's FM broadcast
service rules contained in 47 CFR 73.201-73.333 and 73.1001-73.5009.
Prospective bidders must also be familiar with the broadcast auctions
and competitive bidding rules contained in 47 CFR 1.2101-1.2112 and
73.5000-73.5009. All bidders must also be thoroughly familiar with the
procedures, terms and conditions contained in the Auction 94 Procedures
Public Notice and other public notices and orders referenced in that
Public Notice. The terms contained in the Commission's rules, relevant
orders, and public notices are not negotiable. The Commission may amend
or supplement the information contained in its public notices at any
time, and will issue public notices to convey any new or supplemental
information to applicants. It is the responsibility of all applicants
to remain current with all Commission rules and with all public notices
pertaining to this auction.
ii. Prohibited Communications and Compliance With Antitrust Laws
7. To ensure the competitiveness of the auction process, 47 CFR
1.2105(c) of the Commission's rules prohibits auction applicants for
construction permits in any of the same geographic license areas from
communicating with each other about bids, bidding strategies, or
settlements unless such applicants have identified each other on their
short-form applications (FCC Form 175) as parties with whom they have
entered into agreements pursuant to 47 CFR 1.2105(a)(2)(viii).
a. Entities Subject to Section 1.2105
8. The prohibition on certain communications in 47 CFR 1.215(c)
will apply to any applicants that submit short-form applications
seeking to participate in a Commission auction for construction permits
in the same geographic license area. Thus, unless they have identified
each other on their short-form applications as parties with whom they
have entered into agreements under 47 CFR 1.2105(a)(2)(viii),
applicants for any of the same geographic license areas must
affirmatively avoid all communications with or disclosures to each
other that affect or have the potential to affect bids or bidding
strategy. In some instances, this prohibition extends to communications
regarding the post-auction market structure. This prohibition applies
to all applicants regardless of whether such applicants become
qualified bidders or actually bid. For the FM service, the market
designation is the particular vacant FM allotment (e.g., Harrison,
Michigan, Channel 280A, MM-FM664A). In Auction 94, this rule would
apply to applicants designating any of the same FM allotments on the
short-form application.
9. For purposes of this prohibition, 47 CFR 1.2105(c)(7)(i) defines
``applicant'' 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. For
[[Page 2262]]
example, where an individual served as an officer for two or more
applicants, the Bureaus have found that the bids and bidding strategies
of one applicant are conveyed to the other applicant, and, absent a
disclosed bidding agreement, an apparent violation of 47 CFR 1.2105(c)
occurs.
10. Individuals and entities subject to 47 CFR 1.2105(c) should
take special care in circumstances where their employees may receive
information directly or indirectly relating to any competing
applicant's bids or bidding strategies.
11. 47 CFR 1.2105(c) permits a non-controlling interest holders to
obtain interests in more than one competing applicant without violating
the rule provided specified conditions are met (including a
certification that no prohibited communications have occurred or will
occur), but that exception does not extend to controlling interest
holders.
12. Auction 94 applicants are encouraged not to use the same
individual as an authorized bidder. A violation of 47 CFR 1.2105(c)
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.
Similarly, if the authorized bidders are different individuals employed
by the same organization (e.g., law firm, engineering firm or
consulting firm), a violation similarly could occur. In such a case, at
a minimum, applicants should certify on their applications that
precautionary steps have been taken to prevent communication between
authorized bidders, and that the applicant and its bidders will comply
with 47 CFR 1.2105(c).
b. Prohibition Applies Until Down Payment Deadline
13. 47 CFR 1.2105(c)'s prohibition on certain communications begins
at the short-form application filing deadline and ends at the down
payment deadline after the auction closes, which will be announced in a
future public notice.
c. Prohibited Communications
14. Applicants must not communicate directly or indirectly about
bids or bidding strategy to other applicants in this auction. 47 CFR
1.2105(c) prohibits not only communication about an applicant's own
bids or bidding strategy, it also prohibits communication of another
applicant's bids or bidding strategy. While 47 CFR 1.2105(c) does not
prohibit non-auction-related business negotiations among auction
applicants, each applicant must remain vigilant so as not to directly
or indirectly communicate information that affects, or could affect,
bids, bidding strategy, or the negotiation of settlement agreements.
15. Applicants are cautioned that the Commission remains vigilant
about prohibited communications taking place in other situations,
including communications regarding capital calls or requests for
additional funds in support of bids or bidding strategies. An applicant
also may not use the Commission's bidding system to disclose its
bidding strategy. Applicants also should use caution in their dealings
with other parties, such as members of the press, financial analysts,
or others who might become conduits for the communication of prohibited
bidding information. Similarly, an applicant's public statement of
intent not to participate in Auction 94 bidding could also violate the
rule. Applicants are hereby placed on notice that public disclosure of
information relating to bids, or bidding strategies, or to post auction
market structures may violate 47 CFR 1.2105(c).
d. Disclosure of Bidding Agreements and Arrangements
16. The Commission's rules do not prohibit applicants from entering
into otherwise lawful bidding agreements before filing their short-form
applications, as long as they disclose the existence of the
agreement(s) in their short-form applications. Applicants must identify
in their short-form applications all parties with whom they have
entered into any agreements, arrangements, or understandings of any
kind relating to the construction permits being auctioned, including
any agreements relating to post-auction market structure.
17. If parties agree in principle on all material terms prior to
the short-form application filing deadline, each party to the agreement
must identify the other party or parties to the agreement on its short-
form application under 47 CFR 1.2105(c), even if the agreement has not
been reduced to writing. If the parties have not agreed in principle by
the short-form filing deadline, they should not include the names of
parties to discussions on their applications, and they may not continue
negotiation, discussion or communication with any other applicants
after the short-form application filing deadline.
18. 47 CFR 1.2105(c) does not prohibit non-auction-related business
negotiations among auction applicants. However, certain discussions or
exchanges could touch upon impermissible subject matters because they
may convey pricing information and bidding strategies. Such subject
areas include, but are not limited to, issues such as management,
sales, local marketing agreements, rebroadcast agreements, and other
transactional agreements.
e. Section 1.2105(c) Certification
19. By electronically submitting a short-form application, each
applicant in Auction 94 certifies its compliance with 47 CFR 1.2105(c)
and 73.5002. In particular, an applicant must certify under penalty of
perjury it has not entered and will not enter into any explicit or
implicit agreements, arrangements or understandings of any kind with
any parties, other than those identified in the application, regarding
the amount of the applicant's bids, bidding strategies, or the
particular construction permits on which it will or will not bid.
However, the Bureaus caution that merely filing a certifying statement
as part of an application will not outweigh specific evidence that a
prohibited communication has occurred, nor will it preclude the
initiation of an investigation when warranted. Any applicant found to
have violated 47 CFR 1.2105(c) may be subject to sanctions.
f. Duty To Report Prohibited Communications
20. 47 CFR 1.2105(c)(6) provides that any applicant that makes or
receives a communication that appears to violate 47 CFR 1.2105(c) must
report such communication in writing to the Commission immediately, and
in no case later than five business days after the communication
occurs. The Commission has clarified that each applicant's obligation
to report any such communication continues beyond the five-day period
after the communication is made, even if the report is not made within
the five-day period.
21. In addition, 47 CFR 1.65 requires an auction applicant to
notify the Commission of any substantial change to the information or
certifications included in the pending short-form application. An
applicant is therefore required by 47 CFR 1.65 to report to the
Commission any communication the applicant has made to or received from
another applicant after the short-form application filing deadline that
affects or has the potential to affect bids or bidding strategy, unless
such communication is made to or received from a party to an agreement
identified under 47 CFR 1.2105(a)(2)(viii).
22. 47 CFR 1.65(a) and 1.2105(c) require each applicant in
competitive
[[Page 2263]]
bidding proceedings to furnish additional or corrected information
within five days of a significant occurrence, or to amend its short-
form application no more than five days after the applicant become
aware of the need for amendment.
g. Procedure for Reporting Prohibited Communications
23. A party reporting any communication pursuant to 47 CFR 1.65,
1.2105(a)(2), or 1.2105(c)(6) must take care to ensure that any report
of a prohibited communication does not itself give rise to a violation
of 47 CFR 1.2105(c). For example, a party's report of a prohibited
communication could violate the rule by communicating prohibited
information to other applicants through the use of Commission filing
procedures that would allow such materials to be made available for
public inspection.
24. 47 CFR1.2105(c) requires parties to file only a single report
concerning a prohibited communication and to file that report with
Commission personnel expressly charged with administering the
Commission's auctions. This rule is designed to minimize the risk of
inadvertent dissemination of information in such reports. Any reports
required by 47 CFR 1.2105(c) must be filed consistent with the
instructions set forth in the Auction 94 Procedures Public Notice. For
Auction 94, such reports must be filed with the Chief of the Auctions
and Spectrum Access Division, Wireless Telecommunications Bureau, by
the most expeditious means available. Any such report should be
submitted by email to the following email address: auction94@fcc.gov.
If you choose instead to submit a report in hard copy, any such report
must be delivered only to: Margaret W. Wiener, Chief, Auctions and
Spectrum Access Division, Wireless Telecommunications Bureau, Federal
Communications Commission, 445 12th Street SW., Room 6423, Washington,
DC 20554.
25. A party seeking to report such a prohibited communication
should consider submitting its report with a request that the report or
portions of the submission be withheld from public inspection by
following the procedures specified in 47 CFR 0.459 of the Commission's
rules. Such parties also are encouraged to coordinate with the Auctions
and Spectrum Access Division staff about the procedures for submitting
such reports.
h. Winning Bidders Must Disclose Terms of Agreements
26. Each applicant that is a winning bidder will be required to
disclose in its long-form applications the specific terms, conditions,
and parties involved in any agreement it has entered into. This applies
to any bidding consortia, joint venture, partnership, or agreement,
understanding, or other arrangement entered into relating to the
competitive bidding process, including any agreement relating to the
post-auction market structure. Failure to comply with the Commission's
rules can result in enforcement action.
i. Additional Information Concerning Rule Prohibiting Certain
Communications
27. A summary listing of documents issued by the Commission and the
Bureaus addressing the application of 47 CFR 1.2105(c) may be found in
Attachment D of the Auction 94 Procedures Public Notice. These
documents are available on the Commission's auction web page
j. Antitrust Laws
28. Regardless of compliance with the Commission's rules,
applicants remain subject to the antitrust laws, which are designed to
prevent anticompetitive behavior in the marketplace. Compliance with
the disclosure requirements of 47 CFR 1.2105(c) will not insulate a
party from enforcement of the antitrust laws.
29. To the extent the Commission becomes aware of specific
allegations that suggest that violations of the federal antitrust laws
may have occurred, the Commission may refer such allegations to the
United States Department of Justice for investigation. If an applicant
is found to have violated the antitrust laws or the Commission's rules
in connection with its participation in the competitive bidding
process, it may be subject to forfeiture of its upfront payment, down
payment, or full bid amount and may be prohibited from participating in
future auctions, among other sanctions.
iii. Due Diligence
30. Each potential bidder is solely responsible for investigating
and evaluating all technical and marketplace factors that may have a
bearing on the value of the construction permits for broadcast
facilities they are seeking in this auction. Each bidder is responsible
for assuring that, if it wins a construction permit, it will be able to
build and operate facilities in accordance with the Commission's rules.
The FCC makes no representations or warranties about the use of this
spectrum for particular services. Applicants should be aware that an
FCC auction represents an opportunity to become an FCC permittee in a
broadcast service, subject to certain conditions and regulations. An
FCC auction does not constitute an endorsement by the FCC of any
particular service, technology, or product, nor does an FCC
construction permit or license constitute a guarantee of business
success.
31. An applicant should perform its due diligence research and
analysis before proceeding, as it would with any new business venture.
Each potential bidder is strongly encouraged to review all underlying
Commission orders, such as the specific order amending the FM Table of
Allotments and allotting the FM channel(s) on which it plans to bid. An
order adopted in an FM allotment rulemaking proceeding may include
information unique to the allotment such as site restrictions or
expense reimbursement requirements. Each potential bidder should
perform technical analyses or refresh their previous analyses to assure
itself that, should it become a winning bidder for any Auction 94
construction permit, it will be able to build and operate facilities
that will fully comply with all applicable technical and legal
requirements. Each applicant should inspect any prospective transmitter
sites located in, or near, the service area for which it plans to bid,
confirm the availability of such sites, and familiarize itself with the
Commission's rules regarding the National Environmental Policy Act at
47 CFR Chapter 1, Part 1, Subpart I.
32. Each applicant should conduct its own research prior to Auction
94 in order to determine the existence of pending administrative or
judicial proceedings, including pending allocation rulemaking
proceedings that might affect its decision to participate in the
auction. Each participant in Auction 94 should continue such research
throughout the auction. The due diligence considerations mentioned in
the Auction 94 Procedures Public Notice do not comprise an exhaustive
list of steps that should be undertaken prior to participating in this
auction. As always, the burden is on the potential bidder to determine
how much research to undertake, depending upon specific facts and
circumstances related to its interests.
33. Pending and future judicial proceedings, as well as certain
pending and future proceedings before the Commission--including
applications, applications for modification, petitions for rulemaking,
requests for special temporary authority, waiver requests, petitions to
deny, petitions for reconsideration, informal objections,
[[Page 2264]]
and applications for review--may relate to particular applicants,
incumbent permittees, incumbent licensees, or the construction permits
available in Auction 94. Each prospective applicant is responsible for
assessing the likelihood of the various possible outcomes and for
considering the potential impact on construction permits available in
this auction.
34. Applicants are solely responsible for identifying associated
risks and for investigating and evaluating the degree to which such
matters may affect their ability to bid on, otherwise acquire, or make
use of the construction permits available in Auction 94. Each potential
bidder is responsible for undertaking research to ensure that any
permits won in this auction will be suitable for its business plans and
needs. Each potential bidder must undertake its own assessment of the
relevance and importance of information gathered as part of its due
diligence efforts.
35. Applicants may research the licensing database for the Media
Bureau in order to determine which channels are already licensed to
incumbent licensees or previously authorized to construction
permittees. Licensing records are contained in the Consolidated Data
Base System (CDBS) and may be researched on the Internet from https://www.fcc.gov/mb.
36. The Commission makes no representations or guarantees regarding
the accuracy or completeness of information in its databases or any
third party databases, including, for example, court docketing systems.
To the extent the Commission's databases may not include all
information deemed necessary or desirable by an applicant, it must
obtain or verify such information from independent sources or assume
the risk of any incompleteness or inaccuracy in said databases.
Furthermore, the Commission makes no representations or guarantees
regarding the accuracy or completeness of information that has been
provided by incumbent licensees and incorporated into its databases.
iv. Use of Integrated Spectrum Auction System
37. Bidders will be able to participate in Auction 94 over the
Internet using the Commission's web-based Integrated Spectrum Auction
System (ISAS or FCC Auction System). The Commission makes no warranty
whatsoever with respect to the FCC Auction System. In no event shall
the Commission, or any of its officers, employees, or agents, be liable
for any damages whatsoever (including, but not limited to, loss of
business profits, business interruption, loss of business information,
or any other loss) arising out of or relating to the existence,
furnishing, functioning, or use of the FCC Auction System that is
accessible to qualified bidders in connection with this auction.
Moreover, no obligation or liability will arise out of the Commission's
technical, programming, or other advice or service provided in
connection with the FCC Auction System.
v. Environmental Review Requirements
38. Permittees or licensees must comply with the Commission's rules
regarding implementation of the National Environmental Policy Act and
other federal environmental statutes. The construction of a broadcast
facility is a federal action, and the permittee or licensee must comply
with the Commission's environmental rules, 47 CFR 1.1301-1.1319, for
each such facility. These environmental rules require, among other
things, that the permittee or licensee consult with expert agencies
having environmental responsibilities, including the U.S. Fish and
Wildlife Service, the State Historic Preservation Office, the U.S. Army
Corps of Engineers, and the Federal Emergency Management Agency
(through the local authority with jurisdiction over floodplains). In
assessing the effect of facility construction on historic properties,
the permittee or licensee must follow the provisions of the FCC's
Nationwide Programmatic Agreement Regarding the Section 106 National
Historic Preservation Act Review Process. The permittee or licensee
must prepare environmental assessments for any facility that may have a
significant impact in or on wilderness areas, wildlife preserves,
threatened or endangered species, or designated critical habitats,
historical or archaeological sites, Indian religious sites,
floodplains, and surface features. In addition, the permittee or
licensee must prepare environmental assessments for facilities that
include high intensity white lights in residential neighborhoods or
excessive radio frequency emission.
C. Auction Specifics
i. Bidding Methodology
39. The bidding methodology for Auction 94 will be a simultaneous
multiple round format. The Commission will conduct this auction over
the Internet using the FCC Auction System. Qualified bidders are
permitted to bid electronically via the Internet or by telephone using
the telephonic bidding option. All telephone calls are recorded.
ii. Pre-Auction Dates and Deadlines
40. The following dates and deadlines apply:
Auction Tutorial Available (via Internet). January 28, 2013.
Short-Form Application (FCC Form 175)
Filing Window Opens................... January 28, 2013; 12:00 noon ET.
Short-Form Application (FCC Form 175)
Filing Window Deadline................ February 6, 2013; prior to 6:00 p.m. ET.
Upfront Payments (via wire transfer).. March 18, 2013; 6:00 p.m. ET.
Mock Auction.......................... April 19, 2013.
Auction Begins........................ April 23, 2013.
iii. Requirements for Participation
41. Those wishing to participate in this auction must: (1) Submit a
short-form application (FCC Form 175) electronically prior to 6:00 p.m.
ET, on February 6, 2013, following the electronic filing procedures set
forth in Attachment B to the Auction 94 Procedures Public Notice; (2)
Submit a sufficient upfront payment and an FCC Remittance Advice Form
(FCC Form 159) by 6:00 p.m. ET, on March 18, 2013, following the
procedures and instructions set forth in Attachment C to the Auction 94
Procedures Public Notice; and (3) Comply with all provisions outlined
in the Auctions 94 Procedures Public Notice and applicable Commission
rules.
II. Short-Form Application (FCC Form 175) Requirements
A. General Information Regarding Short-Form Applications
42. An application to participate in an FCC auction, referred to as
a short-form application or FCC Form 175, provides information used to
determine whether the applicant is legally, technically, and
financially qualified to participate in
[[Page 2265]]
Commission auctions for licenses or permits. The short-form application
is the first part of the Commission's two-phased auction application
process. In the first phase, parties desiring to participate in the
auction must file a streamlined, short-form application in which they
certify under penalty of perjury as to their qualifications. Each
applicant must take seriously its duties and responsibilities and
carefully determine before filing an application that it has the legal,
technical and financial resources to participate in the auction and to
construct and operate an FM station if it becomes a licensee as a
result of its participation in this auction. Eligibility to participate
in bidding is based on the applicant's short-form application and
certifications, and on its upfront payment. In the second phase of the
process, each winning bidder must file a more comprehensive long-form
application.
43. Every entity and individual seeking a construction permit
available in Auction 94 must file a short-form application
electronically via the FCC Auction System prior to 6:00 p.m. ET on
February 6, 2013, following the procedures prescribed in Attachment B
to the Auction 94 Procedures Public Notice. If an applicant claims
eligibility for a bidding credit, the information provided in its FCC
Form 175 will be used to determine whether the applicant is eligible
for the claimed bidding credit. Applicants filing a short-form
application are subject to the Commission's anti-collusion rules
beginning at the deadline for filing.
44. Applicants bear full responsibility for submitting accurate,
complete and timely short-form applications. All applicants must
certify on their short-form applications under penalty of perjury that
they are legally, technically, financially and otherwise qualified to
hold a license. Applicants should read carefully the instructions set
forth in Attachment B to the Auction 94 Procedures Public Notice and
should consult the Commission's rules to ensure that all the
information required is included within their short-form application.
45. An individual or entity may not submit more than one short-form
application for a single auction. If a party submits multiple short-
form applications, only one application may be accepted for filing.
46. Applicants also should note that submission of a short-form
application (and any amendments thereto) constitutes a representation
by the certifying official that he or she is an authorized
representative of the applicant, that he or she has read the form's
instructions and certifications, and that the contents of the
application, its certifications, and any attachments are true and
correct. Applicants are not permitted to make major modifications to
their applications; such impermissible changes include a change of the
certifying official to the application. Submission of a false
certification to the Commission may result in penalties, including
monetary forfeitures, license forfeitures, ineligibility to participate
in future auctions, and/or criminal prosecution.
B. Permit Selection
47. An applicant must select the construction permits on which it
wants to bid from the ``Eligible Permits'' list on its short-form
application. To assist in identifying construction permits of interest
that will be available in Auction 94, the FCC Auction System includes a
filtering mechanism that allows an applicant to filter the ``Eligible
Permits'' list. Selections for one or more of the filter criteria can
be made and the system will produce a list of construction permits
satisfying the specified criteria. Any or all of the construction
permits in the filtered results may be selected. Applicants will also
be able to select construction permits from one set of filtered results
and then filter on different criteria to select additional construction
permits.
48. Applicants interested in participating in Auction 94 must have
selected construction permit(s) available in this auction by the short-
form application filing deadline. Applicants must review and verify
their construction permit selections before the deadline for submitting
short-form applications. Construction permit selections cannot be
changed after the short-form application filing deadline. The FCC
Auction System will not accept bids on construction permits that were
not selected on the applicant's short-form application.
C. New Entrant Bidding Credit
49. The interests of the applicant and of any individuals or
entities with an attributable interest in the applicant, in other media
of mass communications are considered when determining an applicant's
eligibility for the New Entrant Bidding Credit. In Auction 94, the
bidder's attributable interests and, thus, its maximum new entrant
bidding credit eligibility are determined as of the short-form
application filing deadline. An applicant intending to divest a media
interest or make any other ownership changes, such as resignation of
positional interests, in order to avoid attribution for purposes of
qualifying for the New Entrant Bidding Credit must have consummated
such divestment transactions or have completed such ownership changes
by no later than the short-form filing deadline. Each prospective
bidder is reminded, however, that events occurring after the short-form
filing deadline, such as the acquisition of attributable interests in
media of mass communications, may cause diminishment or loss of the
bidding credit, and must be reported immediately.
50. Under traditional broadcast attribution rules, those entities
or individuals with an attributable interest in a bidder include: (1)
All officers and directors of a corporate bidder; (2) Any owner of 5
percent or more of the voting stock of a corporate bidder; (3) All
partners and limited partners of a partnership bidder, unless the
limited partners are sufficiently insulated; and (4) All members of a
limited liability company, unless sufficiently insulated.
51. In cases where an applicant's spouse or close family member
holds other media interests, such interests are not automatically
attributable to the bidder. The Commission decides attribution issues
in this context based on certain factors traditionally considered
relevant. Applicants should note that the mass media attribution rules
were revised in 1999.
52. Applicants are also reminded that, by the New Entrant Bidding
Credit Reconsideration Order, the Commission further refined the
eligibility standards for the New Entrant Bidding Credit, judging it
appropriate to attribute the media interests held by very substantial
investors in, or creditors of, an applicant claiming new entrant
status. Specifically, the attributable mass media interests held by an
individual or entity with an equity and/or debt interest in an
applicant shall be attributed to that applicant for purposes of
determining its eligibility for the New Entrant Bidding Credit, if the
equity and debt interests, in the aggregate, exceed 33 percent of the
total asset value of the applicant, even if such an interest is non-
voting.
53. In the Diversity Order, 73 FR 28400, May 16, 2008, the
Commission relaxed the equity/debt plus (EDP) attribution standard, to
allow for higher investment opportunities in entities meeting the
definition of eligible entities as set forth in 47 CFR 73.3555 Note
2(i). Consistent with a United States Court of Appeals decision issued
in July 2011, the relaxed EDP rule for eligible entities as the basis
for the New Entrant Bidding Credit will be unavailable in Auction 94.
[[Page 2266]]
54. Generally, media interests will be attributable for purposes of
the New Entrant Bidding Credit to the same extent that such other media
interests are considered attributable for purposes of the broadcast
multiple ownership rules. However, attributable interests held by a
winning bidder in existing low power television, television translator
or FM translator facilities will not be counted among the applicant's
other mass media interests in determining its eligibility for a New
Entrant Bidding Credit. A medium of mass communications is defined in
section 73.5008(b). Full service noncommercial educational stations, on
both reserved and non-reserved channels, are included among media of
mass communications as defined in section 73.5008(b).
D. Application Requirements
55. In addition to the ownership information required pursuant to
47 CFR 1.2105 and 1.2112, applicants seeking a New Entrant Bidding
Credit are required to establish on their short-form applications that
they satisfy the eligibility requirements to qualify for the bidding
credit. In those cases, a certification under penalty of perjury must
be provided in completing the short-form application. An applicant
claiming that it qualifies for a 35 percent New Entrant Bidding Credit
must certify that neither it nor any of its attributable interest
holders have any attributable interests in any other media of mass
communications. An applicant claiming that it qualifies for a 25
percent New Entrant Bidding Credit must certify that neither it nor any
of its attributable interest holders has any attributable interests in
more than three media of mass communications, and must identify and
describe such media of mass communications.
i. Bidding Credits
56. Applicants that qualify for the New Entrant Bidding Credit, as
specified in the applicable rule, are eligible for a bidding credit
that represents the amount by which a bidder's winning bid is
discounted. The size of a New Entrant Bidding Credit depends on the
number of ownership interests in other media of mass communications
that are attributable to the bidder-entity and its attributable
interest-holders. A 35 percent bidding credit will be given to a
winning bidder if it, and/or any individual or entity with an
attributable interest in the winning bidder, has no attributable
interest in any other media of mass communications, as defined in 47
CFR 73.5008. A 25 percent bidding credit will be given to a winning
bidder if it, and/or any individual or entity with an attributable
interest in the winning bidder, has an attributable interest in no more
than three mass media facilities, as defined in 47 CFR 73.5008. No
bidding credit will be given if any of the commonly owned mass media
facilities serve the same area as the broadcast permit proposed in the
auction, as defined in 47 CFR 73.5007(b), or if the winning bidder,
and/or any individual or entity with an attributable interest in the
winning bidder, has attributable interests in more than three mass
media facilities. For purposes of determining whether a broadcast
permit offered in this auction is in the same area as an applicant's
existing mass media facilities, the coverage area of the to-be-
auctioned facility is calculated using maximum class facilities at the
allotment reference coordinates, not any applicant-specified preferred
site coordinates.
57. Bidding credits are not cumulative; qualifying applicants
receive either the 25 percent or the 35 percent bidding credit, but not
both. Attributable interests are defined in 47 CFR 73.3555 and note 2
of that section. Applicants should note that unjust enrichment
provisions apply to a winning bidder that utilizes a bidding credit and
subsequently seeks to assign or transfer control of its license or
construction permit to an entity not qualifying for the same level of
bidding credit.
E. Ownership Disclosure Requirements
58. For purposes of determining eligibility to participate in a
broadcast auction, all applicants must comply with the uniform Part 1
ownership disclosure standards and provide information required by 47
CFR 1.2105 and 1.2112 . Specifically, in completing the short-form
application, applicants will be required to fully disclose information
on the real party- or parties-in-interest and ownership structure of
the applicant, including both direct and indirect ownership interests
of 10 percent or more. The ownership disclosure standards for the
short-form application are prescribed in 47 CFR 1.2105 and 1.2112 of
the Commission's rules. Each applicant is responsible for ensuring that
information submitted in its short-form application is complete and
accurate.
59. In certain circumstances, an applicant's most current ownership
information on file with the Commission, if in an electronic format
compatible with the short-form application (FCC Form 175) (such as
information submitted in an on-line FCC Form 602 or in an FCC Form 175
filed for a previous auction using the FCC Auction System), will
automatically be entered into their short-form application. Each
applicant must carefully review any information automatically entered
to confirm that it is complete and accurate as of the deadline for
filing the short-form application. Any information that needs to be
corrected or updated must be changed directly in the short-form
application.
F. Provisions Regarding Former and Current Defaulters
60. Current defaulters or delinquents are not eligible to
participate in Auction 94, but former defaulters or delinquents can
participate so long as they are otherwise qualified and, make upfront
payments that are fifty percent more than would otherwise be necessary.
An applicant is considered a ``current defaulter'' or a ``current
delinquent'' when it, any of its affiliates, any of its controlling
interests, or any of the affiliates of its controlling interests, is in
default on any payment for any Commission construction permit or
license (including a down payment) or is delinquent on any non-tax debt
owed to any Federal agency as of the filing deadline for short-form
applications. An applicant is considered a ``former defaulter'' or a
``former delinquent'' when it, any of its affiliates, any of its
controlling interests, or any of the affiliates of its controlling
interests, have defaulted on any Commission construction permit or
license or been delinquent on any non-tax debt owed to any Federal
agency, but have since remedied all such defaults and cured all of the
outstanding non-tax delinquencies.
61. On the short-form application, an applicant must certify under
penalty of perjury that it, its affiliates, its controlling interests,
and the affiliates of its controlling interests, as defined by 47 CFR
1.2110, are not in default on any payment for a Commission construction
permit or license (including down payments) and that it is not
delinquent on any non-tax debt owed to any Federal agency. Each
applicant must also state under penalty of perjury whether it, its
affiliates, its controlling interests, and the affiliates of its
controlling interests, have ever been in default on any Commission
construction permit or license or have ever been delinquent on any non-
tax debt owed to any Federal agency. Prospective applicants are
reminded that submission of a false certification to the Commission is
a serious matter that may result in severe penalties, including
[[Page 2267]]
monetary forfeitures, license revocations, exclusion from participation
in future auctions, and/or criminal prosecution.
62. Applicants are encouraged to review the Bureaus' previous
guidance on default and delinquency disclosure requirements in the
context of the short-form application process. For example, it has been
determined that, to the extent that Commission rules permit late
payment of regulatory or application fees accompanied by late fees,
such debts will become delinquent for purposes of 47 CFR 1.2105(a) and
1.2106(a) only after the expiration of a final payment deadline.
Therefore, with respect to regulatory or application fees, the
provisions of 47 CFR 1.2105(a) and 1.2106(a) regarding default and
delinquency in connection with competitive bidding are limited to
circumstances in which the relevant party has not complied with a final
Commission payment deadline. Parties are also encouraged to consult
with the Wireless Telecommunications Bureau's Auctions and Spectrum
Access Division staff if they have any questions about default and
delinquency disclosure requirements.
63. The Commission considers outstanding debts owed to the United
States Government, in any amount, to be a serious matter. The
Commission adopted rules, including a provision referred to as the
``red light rule,'' that implement its obligations under the Debt
Collection Improvement Act of 1996, which governs the collection of
debts owed to the United States. Under the red light rule, applications
and other requests for benefits filed by parties that have outstanding
debts owed to the Commission will not be processed. In the same
rulemaking order, the Commission explicitly declared, however, that its
competitive bidding rules ``are not affected'' by the red light rule.
As a consequence, the Commission's adoption of the red light rule does
not alter the applicability of any of its competitive bidding rules,
including the provisions and certifications of 47 CFR 1.2105 and
1.2106, with regard to current and former defaults or delinquencies.
64. Applicants are reminded that the Commission's Red Light Display
System, which provides information regarding debts currently owed to
the Commission, may not be determinative of an auction applicant's
ability to comply with the default and delinquency disclosure
requirements of 47 CFR 1.2105. Thus, while the red light rule
ultimately may prevent the processing of long-form applications by
auction winners, an auction applicant's lack of current ``red light''
status is not necessarily determinative of its eligibility to
participate in an auction or of its upfront payment obligation.
65. Moreover, prospective applicants in Auction 94 should note that
any long-form applications filed after the close of bidding will be
reviewed for compliance with the Commission's red light rule, and such
review may result in the dismissal of a winning bidder's long-form
application.
G. Optional Applicant Status Identification
66. Applicants owned by members of minority groups and/or women, as
defined in 47 CFR 1.2110(c)(3), and rural telephone companies, as
defined in 47 CFR 1.2110(c)(4), may identify themselves regarding this
status in filling out their short-form applications. This applicant
status information is collected for statistical purposes only and
assists the Commission in monitoring the participation of ``designated
entities'' in its auctions.
H. Noncommercial Educational Status Election
67. Applications for noncommercial educational (NCE) FM stations on
nonreserved spectrum, filed during an FM filing window, will be
returned as unacceptable for filing if mutually exclusive with any
application for a commercial station. Accordingly, if an FCC Form 175
filed during the Auction 94 filing window identifying the application's
proposed station as noncommercial educational is mutually exclusive
with any application filed during that window for a commercial station,
the NCE application will be returned as unacceptable for filing. For
this reason, each prospective applicant in this auction should consider
carefully if they wish to propose NCE operation for any FM station
acquired in this auction. This NCE election cannot be reversed after
the initial application filing deadline.
I. Minor Modifications to Short-Form Applications
68. After the deadline for filing initial applications, an Auction
94 applicant is permitted to make only minor changes to its
application. Permissible minor changes include, among other things,
deletion and addition of authorized bidders (to a maximum of three) and
revision of addresses and telephone numbers of the applicants and their
contact persons. An applicant is not permitted to make a major
modification to its application (e.g., change of construction permit
selection, change control of the applicant, change the certifying
official, claim eligibility for a higher percentage of bidding credit,
or change the identification of the application's proposed facilities
as noncommercial educational) after the initial application filing
deadline. Thus, any change in control of an applicant--resulting from a
merger, for example, will be considered a major modification, and the
application will consequently be dismissed. If an applicant's short-
form application is dismissed, the applicant would remain subject to
the communication prohibitions of 47 CFR 1.2105(c) until the down
payment deadline.
69. If an applicant wishes to make permissible minor changes to its
short-form application, such changes should be made electronically to
its short-form application using the FCC Auction System whenever
possible. For the change to be submitted and considered by the
Commission, be sure to click on the SUBMIT button.
70. An applicant cannot use the FCC Auction System outside of the
initial and resubmission filing windows to make changes to its short-
form application for other than administrative changes (e.g., changing
certain contact information or the name of an authorized bidder). If
these or other permissible minor changes need to be made outside of
these windows, the applicant must submit a letter briefly summarizing
the changes and subsequently update its short-form application in the
FCC Auction System once it is available. Moreover, after the filing
window has closed, the system will not permit applicants to make
certain changes, such as the applicant's legal classification and the
identification of the application's proposed facilities as
noncommercial educational. Any letter describing changes to an
applicant's short-form application must be submitted by email to
auction94@fcc.gov. Any application amendment and related statements of
fact must be certified by (1) The applicant, if the applicant is an
individual; (2) one of the partners if the applicant is a partnership;
(3) an officer, director, or duly authorized employee, if the applicant
is a corporation; (4) a member who is an officer, if the applicant is
an unincorporated association; (5) the trustee, if the applicant is an
amateur radio service club; or (6) a duly elected or appointed official
who is authorized to make such certifications under the laws of the
applicable jurisdiction, if the applicant is a governmental entity.
71. Applicants must not submit application-specific material
through the Commission's Electronic Comment
[[Page 2268]]
Filing System, which was used for submitting comments regarding Auction
94.
J. Maintaining Current Information in Short-Form Applications
72. 47 CFR 1.65 and 1.2105(b) require an applicant to maintain the
accuracy and completeness of information furnished in its pending
application and in competitive bidding proceedings to furnish
additional or corrected information to the Commission within five days
of a significant occurrence, or to amend a short form application no
more than five days after the applicant becomes aware of the need for
the amendment. Changes that cause a loss of or reduction in the
percentage of bidding credit specified on the originally-submitted
application must be reported immediately, and no later than five
business days after the change occurs. If an amendment reporting
changes is a ``major amendment,'' as defined by 47 CFR 1.2105, the
major amendment will not be accepted and may result in the dismissal of
the application. After the short-form filing deadline, applicants may
make only minor changes to their applications. For changes to be
submitted and considered by the Commission, be sure to click on the
SUBMIT button in the FCC Auction System. In addition, an applicant
cannot update its short-form application using the FCC Auction System
after the initial and resubmission filing windows close. If information
needs to be submitted pursuant to 47 CFR 1.65 after these windows
close, a letter briefly summarizing the changes must be submitted by
email to auction94@fcc.gov. This email must include a subject or
caption referring to Auction 94 and the name of the applicant.
III. Pre-Auction Procedures
A. Online Auction Tutorial--Available January 28, 2013
73. On Monday, January 28, 2013, an educational auction tutorial
will be available on the Auction 94 web page for prospective bidders to
familiarize themselves with the auction process. This online tutorial
will provide information about pre-auction procedures, completing
short-form applications, auction conduct, the FCC Auction Bidding
System, auction rules, and broadcast services rules. The tutorial will
also provide an avenue to ask FCC staff questions about the auction,
auction procedures, filing requirements, and other matters related to
this auction. Once posted, this tutorial will remain accessible for
reference prior to Auction 94.
B. Short-Form Applications--Due Prior to 6:00 p.m. ET on February 6,
2013
74. In order to be eligible to bid in this auction, applicants must
first follow the procedures set forth in Attachment B to the Auction 94
Procedures Public Notice to submit a short-form application (FCC Form
175) electronically via the FCC Auction System. This short-form
application must be submitted prior to 6:00 p.m. ET on February 6,
2013. Late applications will not be accepted. No application fee is
required, but an applicant must submit a timely upfront payment to be
eligible to bid.
75. Applications may generally be filed at any time beginning at
noon ET on January 28, 2013, until the filing window closes at 6:00
p.m. ET on February 6, 2013. Applicants are strongly encouraged to file
early and are responsible for allowing adequate time for filing their
applications. Applications can be updated or amended multiple times
until the filing deadline on February 6, 2013.
76. An applicant must always click on the SUBMIT button on the
``Certify & Submit'' screen to successfully submit its FCC Form 175 and
any modifications; otherwise the application or changes to the
application will not be received or reviewed by Commission staff.
Additional information about accessing, completing, and viewing the FCC
Form 175 is included in Attachment B of the Auction 94 Procedures
Public Notice. FCC Auctions Technical Support is available at (877)
480-3201, option nine; (202) 414-1250; or (202) 414-1255 (text
telephone (TTY)); hours of service are Monday through Friday, from 8:00
a.m. to 6:00 p.m. ET. In order to provide better service to the public,
all calls to Technical Support are recorded.
C. Application Processing and Minor Corrections
77. After the deadline for filing FCC Form 175 applications, the
Commission will process all timely submitted applications to determine
which are complete, and subsequently will issue a public notice
identifying (1) Those that are complete; (2) those that are rejected;
and (3) those that are incomplete or deficient because of minor defects
that may be corrected. The public notice will include the deadline for
resubmitting corrected applications.
78. Non-mutually exclusive applications will be listed in a
subsequent public notice to be released by the Bureaus. Such
applications will not proceed to auction, but will proceed in
accordance with instructions set forth in that public notice. All
mutually exclusive applications will be considered under the relevant
procedures for conflict resolution. Mutually exclusive applications
proposing commercial stations will proceed to auction.
79. After the application filing deadline on February 6, 2013,
applicants can make only minor corrections to their applications. They
will not be permitted to make major modifications (e.g., change
construction permit selection, change control of the applicant, change
the certifying official, claim eligibility for a higher percentage of
bidding credit, or change identification of the application's proposed
facilities as NCE).
80. Commission staff will communicate only with an applicant's
contact person or certifying official, as designated on the short-form
application, unless the applicant's certifying official or contact
person notifies the Commission in writing that applicant's counsel or
other representative is authorized to speak on its behalf.
Authorizations may be sent by email to auction94@fcc.gov.
D. Upfront Payments--Due March 18, 2013
81. In order to be eligible to bid in this auction, an upfront
payment must be submitted and accompanied by an FCC Remittance Advice
Form (FCC Form 159). After completing its short-form application, an
applicant will have access to an electronic version of the FCC Form 159
that can be printed and sent by fax to U.S. Bank in St. Louis,
Missouri. All upfront payments must be made as instructed in the
Auction 94 Procedures Public Notice and must be received in the proper
account at U.S. Bank before 6:00 p.m. ET on March 18, 2013.
i. Making Upfront Payments by Wire Transfer
82. Wire transfer payments must be received before 6:00 p.m. ET on
March 18, 2013. No other payment method is acceptable. To avoid
untimely payments, applicants should discuss arrangements (including
bank closing schedules) with their bankers several days before they
plan to make the wire transfer, and allow sufficient time for the
transfer to be initiated and completed before the deadline. At least
one hour before placing the order for the wire transfer (but on the
same business day), applicants must fax a completed FCC Form 159
(Revised 2/03) to U.S. Bank at (314) 418-4232. On the fax cover sheet,
write Wire Transfer--
[[Page 2269]]
Auction Payment for Auction 94. In order to meet the upfront payment
deadline, an applicant's payment must be credited to the Commission's
account for Auction 94 before the deadline.
83. Each applicant is responsible for ensuring timely submission of
its upfront payment and for timely filing of an accurate and complete
FCC Remittance Advice Form (FCC Form 159). An applicant should
coordinate with its financial institution well ahead of the due date
regarding its wire transfer and allow sufficient time for the 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. Each applicant also is responsible
for obtaining confirmation from its financial institution that its wire
transfer to U.S. Bank was successful and from Commission staff that its
upfront payment was timely received and that it was deposited into the
proper account.
84. All payments must be in U.S. dollars. All payments must be made
by wire transfer. Upfront payments for Auction 94 go to a lockbox
number different from the lockbox used in previous FCC auctions.
Failure to deliver a sufficient upfront payment as instructed by the
March 18, 2013, deadline will result in dismissal of the short-form
application and disqualification from participation in the auction.
ii. FCC Form 159
85. An accurate and complete FCC Remittance Advice Form (FCC Form
159, Revised 2/03) must be faxed to U.S. Bank to accompany each upfront
payment. Proper completion of this form is critical to ensuring correct
crediting of upfront payments. Detailed instructions for completion of
FCC Form 159 are included in Attachment C of the Auction 94 Procedures
Public Notice. An electronic pre-filled version of the FCC Form 159 is
available after submitting the FCC Form 175. Payers using the pre-
filled FCC Form 159 are responsible for ensuring that all of the
information on the form, including payment amounts, is accurate. The
FCC Form 159 can be completed electronically, but it must be filed with
U.S. Bank by fax.
iii. Upfront Payments and Bidding Eligibility
86. Applicants must make upfront payments sufficient to obtain
bidding eligibility on the construction permits on which they will bid.
The amount of the upfront payment would determine a bidder's initial
bidding eligibility, the maximum number of bidding units on which a
bidder may place bids. In order to bid on a particular construction
permit, a qualified bidder must have selected the construction permit
on its FCC Form 175 and must have a current eligibility level that
meets or exceeds the number of bidding units assigned to that
construction permit. At a minimum, therefore, an applicant's total
upfront payment must be enough to establish eligibility to bid on at
least one of the construction permits selected on its FCC Form 175, or
else the applicant will not be eligible to participate in the auction.
An applicant does not have to make an upfront payment to cover all
construction permits the applicant selected on its FCC Form 175, but
only enough to cover the maximum number of bidding units that are
associated with construction permits on which they wish to place bids
and hold provisionally winning bids in any given round. The total
upfront payment does not affect the total dollar amount the bidder may
bid on any given construction permit.
87. The specific upfront payment amounts and bidding units for each
construction permit are set forth in Attachment A of the Auction 94
Procedures Public Notice.
88. In calculating its upfront payment amount, an applicant should
determine the maximum number of bidding units on which it may wish to
be active (bid on or hold provisionally winning bids on) in any single
round, and submit an upfront payment amount covering that number of
bidding units. In order to make this calculation, an applicant should
add together the bidding units for all construction permits on which it
seeks to be active in any given round. Applicants should check their
calculations carefully, as there is no provision for increasing a
bidder's eligibility after the upfront payment deadline.
89. If an applicant is a former defaulter, it must calculate its
upfront payment for all of its identified construction permits by
multiplying the number of bidding units on which it wishes to be active
by 1.5. In order to calculate the number of bidding units to assign to
former defaulters, the Commission will divide the upfront payment
received by 1.5 and round the result up to the nearest bidding unit.
E. Applicant's Wire Transfer Information for Purposes of Refunds of
Upfront Payments
90. To ensure that refunds of upfront payments are processed in an
expeditious manner, the Commission is requesting that all pertinent
information be supplied. Applicants can provide the information
electronically during the initial short-form application filing window
after the form has been submitted. (Applicants are reminded that
information submitted as part of an FCC Form 175 will be available to
the public; for that reason, wire transfer information should not be
included in an FCC Form 175.) Specific instructions were provided in
the Auction 94 Procedures Public Notice for the submission of wire
transfer instructions by fax.
F. Auction Registration
91. Approximately ten days before the auction, the Bureaus will
issue a public notice announcing all qualified bidders for the auction.
Qualified bidders are those applicants with submitted FCC Form 175
applications that are deemed timely-filed, accurate, and complete,
provided that such applicants have timely submitted an upfront payment
that is sufficient to qualify them to bid.
92. All qualified bidders are automatically registered for the
auction. Registration materials will be distributed prior to the
auction by overnight mail. The mailing will be sent only to the contact
person at the contact address listed in the FCC Form 175 and will
include the SecurID[supreg] tokens that will be required to place bids,
the ``Integrated Spectrum Auction System (ISAS) Bidder's Guide,'' and
the Auction Bidder Line phone number.
93. Qualified bidders that do not receive this registration mailing
will not be able to submit bids. Therefore, if this mailing is not
received by noon on Wednesday, April 17, 2013, call the Auctions
Hotline at (717) 338-2868. Receipt of this registration mailing is
critical to participating in the auction, and each applicant is
responsible for ensuring it has received all of the registration
material.
94. In the event that SecurID[supreg] tokens are lost or damaged,
only a person who has been designated as an authorized bidder, the
contact person, or the certifying official on the applicant's short-
form application may request replacements. To request replacement of
these items, call Technical Support at (877) 480-3201, option nine;
(202) 414-1250; or (202) 414-1255 (TTY).
G. Remote Electronic Bidding
95. The Commission will conduct this auction over the Internet, and
telephonic bidding will be available as well. Only qualified bidders
are permitted to bid. Each applicant should indicate its bidding
preference--
[[Page 2270]]
electronic or telephonic--on its FCC Form 175. In either case, each
authorized bidder must have its own SecurID[supreg] token, which the
Commission will provide at no charge. Each applicant with one
authorized bidder will be issued two SecurID[supreg] tokens, while
applicants with two or three authorized bidders will be issued three
tokens. For security purposes, the SecurID[supreg] tokens, the
telephonic bidding telephone number, and the ``Integrated Spectrum
Auction System (ISAS) Bidder's Guide'' are only mailed to the contact
person at the contact address listed on the FCC Form 175. Each
SecurID[supreg] token is tailored to a specific auction.
SecurID[supreg] tokens issued for other auctions or obtained from a
source other than the FCC will not work for Auction 94.
H. Mock Auction--April 19, 2013
96. All qualified bidders will be eligible to participate in a mock
auction on Friday, April 19, 2013. The mock auction will enable bidders
to become familiar with the FCC Auction System prior to the auction.
The Bureaus strongly recommend that all bidders participate in the mock
auction. Details will be announced by public notice.
IV. Auction
97. The first round of bidding for Auction 94 will begin on
Tuesday, April 23, 2013. The initial bidding schedule will be announced
in a public notice listing the qualified bidders, which is released
approximately 10 days before the start of the auction.
A. Auction Structure
i. Simultaneous Multiple Round Auction
98. In Auction 94, all construction permits will be auctioned in a
single auction using the Commission's standard simultaneous multiple-
round auction format. This type of auction 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. A bidder may bid on, and potentially win, any
number of construction permits. The Bureaus received no comment on this
proposal, and this proposal is adopted. Unless otherwise announced,
bids will be accepted on all construction permits in each round of the
auction until bidding stops on every construction permit.
ii. Eligibility and Activity Rules
99. The Bureaus will use upfront payments to determine initial
(maximum) eligibility (as measured in bidding units) for Auction 94.
The amount of the upfront payment submitted by a bidder determines
initial bidding eligibility, the maximum number of bidding units on
which a bidder may be active. As noted earlier, each construction
permit is assigned a specific number of bidding units as listed in
Attachment A of the Auction 94 Procedures Public Notice. Bidding units
assigned to each construction permit do not change as prices rise
during the auction. Upfront payments are not attributed to specific
construction permits. Rather, a bidder may place bids on any of the
construction permits selected on its FCC Form 175 as long as the total
number of bidding units associated with those construction permits does
not exceed its current eligibility.
100. In order to ensure that an 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. Bidders are required to be active on a specific
percentage of their current bidding eligibility during each round of
the auction. The Bureaus proposed a 100 percent activity requirement.
101. The Bureaus declined one commenter's suggestion that they
should require an upfront payment covering of all the permits selected
by an applicant in its FCC Form 175. Allowing each applicant to submit
an upfront payment that covers the maximum number of bidding units on
which it may wish to be active in any given round affords bidders the
flexibility to pursue backup strategies--not unlike having an activity
requirement below 100%.
102. The Bureaus also chose not to adopt their proposal to have a
100% activity requirement in response to concerns raised by a
commenter. Instead, the Bureaus adopt two activity requirements: an 80%
requirement for the beginning of the auction and a 95% requirement that
will be used later in the auction. The Bureaus will implement these
requirements using two ``auction stages.''
103. When the Bureaus move the auction from Stage One to Stage Two,
they will first alert bidders by announcement in the bidding system.
The Bureaus have the discretion to further alter the activity
requirements before and/or during the auction as circumstances warrant.
iii. Activity Rule Waivers
104. The Bureaus decided to provide bidders in Auction 94 with
three activity rule waivers. Use of an activity rule waiver preserves
the bidder's eligibility despite its activity in the current round
being below the required minimum activity level. An activity rule
waiver applies to an entire round of bidding and not to a particular
construction permit. Waivers can be either proactive or automatic and
are principally a mechanism for auction participants to avoid the loss
of bidding eligibility in the event that exigent circumstances prevent
them from placing a bid in a particular round.
105. The FCC Auction System assumes that a bidder with insufficient
activity would prefer to apply 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. If no waivers remain and the activity requirement is not
satisfied, the FCC Auction System will permanently reduce the bidder's
eligibility, possibly curtailing or eliminating the ability to place
additional bids in the auction.
106. A bidder with insufficient activity may wish to reduce its
bidding eligibility rather than use an activity rule waiver. If so, the
bidder must affirmatively override the automatic waiver mechanism
during the bidding round by using the reduce eligibility function in
the FCC Auction System. In this case, the bidder's eligibility is
permanently reduced to bring it into compliance with the activity rule.
Reducing eligibility is an irreversible action; once eligibility has
been reduced, a bidder will not be permitted to regain its lost bidding
eligibility, even if the round has not yet closed.
107. Finally, a bidder may apply an activity rule waiver
proactively as a means to keep the auction open without placing a bid.
If a proactive waiver is applied (using the ``apply waiver'' function
in the FCC Auction System) during a bidding round in which no bids are
placed, the auction will remain open and the bidder's eligibility will
be preserved. However, an automatic waiver applied by the FCC Auction
System in a round in which there are no new bids or proactive waivers
will not keep the auction open. A bidder cannot submit a proactive
waiver after bidding in a round, and applying a proactive waiver will
preclude it from placing any bids in that round. Applying a waiver is
irreversible; once a bidder submits a proactive waiver, the bidder
cannot
[[Page 2271]]
unsubmit the waiver even if the round has not yet ended.
iv. Auction Stopping Rules
108. For Auction 94, the Bureaus will employ a simultaneous
stopping rule approach, which means all construction permits remain
available for bidding until bidding stops simultaneously on every
construction permit. More specifically, bidding will close on all
construction permits after the first round in which no bidder submits
any new bids or applies a proactive waiver.
109. The Bureaus also sought comment on alternative versions of the
simultaneous stopping rule for Auction 94. Under Option1, the auction
would close for all construction permits after the first round in which
no bidder applies a proactive waiver or places any new bids on any
construction permit on 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.
110. Under Option 2, the auction would close for all construction
permits after the first round in which no bidder applies a waiver or
places any new bids on any construction permit that is not FCC held.
Thus, absent any other bidding activity, a bidder placing a new bid on
a construction permit that does not already have a provisionally
winning bid (an ``FCC-held'' construction permit) would not keep the
auction open under this modified stopping rule.
111. Under Option 3, the auction would close using a modified
version of the simultaneous stopping rule that combines 1 and 2.
112. Under Option 4, the auction would end after a specified number
of additional rounds. If the Bureaus invoke this special stopping rule,
it will accept bids in the specified final round(s), after which the
auction will close.
113. Under Option 5, the auction would remain open even if no
bidder places any new bids or applies a waiver. In this event, the
effect will be the same as if a bidder had applied a waiver. Thus, the
activity rule will apply as usual, and a bidder with insufficient
activity will either lose bidding eligibility or use a waiver.
114. The Bureaus proposed to exercise these options only in certain
circumstances, for example, where the 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 these
options, The Bureaus are likely to attempt to change the pace of the
auction. For example, the Bureaus may adjust the pace of bidding by
changing the number of bidding rounds per day and/or the minimum
acceptable bids. The Bureaus retain the discretion to exercise any of
these options with or without prior announcement during the auction.
The Bureaus received no comment on these proposals and adopt them for
Auction 94.
v. Auction Delay, Suspension, or Cancellation
115. The Bureaus by public notice or by announcement during the
auction, they 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.
B. Bidding Procedures
i. Round Structure
116. The initial schedule of bidding rounds will be announced in
the public notice listing the qualified bidders, which is released
approximately 10 days before the start of the auction. Each bidding
round is followed by the release of round results. Multiple bidding
rounds may be conducted each day.
117. The Bureaus have 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. The Bureaus may change 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.
ii. Reserve Price and Minimum Opening Bids
118. The Bureaus did not propose to establish reserve prices for
the construction permits in Auction 94. The Bureaus did establish
minimum opening bids for each construction permit, reasoning that a
minimum opening bid, which has been used in other auctions, is an
effective tool for accelerating the competitive bidding process. The
Bureaus sought comment on the proposed minimum opening bids.
119. In response to specific concerns raised by commenters
concerning the Bureaus' proposed minimum opening bid amounts for
particular permits, the Bureaus adopted a minimum opening bid for MM-
FM1057-A, at Oak Harbor, Washington, of $15,000, a minimum opening bid
for MM-FM1058-A, at Sedro-Woolley, Washington, of $5,000, and a minimum
opening bid for MM-FM1059-A, at Sequim, Washington, of $1,500.
120. For the rest of the construction permits, the Bureaus adopted
the minimum opening bid amounts proposed in the Auction 94 Comment
Public Notice. The specific minimum opening bid amounts for all the
construction permits available in Auction 94 are again specified in
Attachment A to the Auction 94 Procedures Public Notice.
iii. Bid Amounts
121. In each round, an eligible bidder will be able to place a bid
on a given construction permit in any of up to nine different amounts
The first of the acceptable bid amounts is called the minimum
acceptable bid amount. The minimum acceptable bid amount for a
construction permit will be equal to its minimum opening bid amount
until there is a provisionally winning bid for the construction permit.
After there is a provisionally winning bid for a permit, the minimum
acceptable bid amount will be a certain percentage higher. That is, the
minimum acceptable bid amount will be calculated by multiplying the
provisionally winning bid amount times one plus the minimum acceptable
bid percentage. For example, if the minimum acceptable bid percentage
is 10 percent, the minimum acceptable bid amount will equal
(provisionally winning bid amount) * (1.10), rounded.
122. The eight additional bid amounts are calculated using the
minimum acceptable bid amount and a bid increment percentage, which
need not be the same as the percentage used to calculate the minimum
acceptable amount. The first additional acceptable bid amount equals
the minimum acceptable bid amount times one plus the bid increment
percentage, rounded. If, for example, the bid increment percentage is 5
percent, the calculation is (minimum acceptable bid amount) * (1 +
0.05), rounded, or (minimum acceptable bid amount) * 1.05, rounded; the
second additional acceptable bid amount equals the minimum acceptable
bid amount times one plus two times the bid increment percentage,
rounded, or (minimum acceptable bid amount) * 1.10, rounded; the third
additional acceptable bid amount equals the minimum acceptable bid
amount times one plus three times the bid increment percentage,
rounded, or (minimum acceptable bid amount) * 1.15, rounded; etc. The
Bureaus will round the results
[[Page 2272]]
of these calculations using the standard rounding procedures for
auctions.
123. 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. The Bureaus proposed
to retain the discretion to do so on a construction permit-by-
construction permit basis. The Bureaus 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.
For example, the Bureaus could set a $10,000 limit on increases in
minimum acceptable bid amounts over provisionally winning bids. Thus,
if calculating a minimum acceptable bid using the minimum acceptable
bid percentage results in a minimum acceptable bid amount that is
$12,000 higher than the provisionally winning bid on a construction
permit, the minimum acceptable bid amount would instead be capped at
$10,000 above the provisionally winning bid. If the Bureaus exercise
this discretion, the Bureaus will alert bidders by an announcement in
the FCC Auction System during the auction.
iv. Provisionally Winning Bids
124. At the end of each bidding round, a ``provisionally winning
bid'' will be determined based on the highest bid amount received for
each construction permit. A provisionally winning bid will remain the
provisionally winning bid until there is a higher bid on the same
construction permit at the close of a subsequent round. Provisionally
winning bids at the end of the auction become the winning bids. Bidders
are reminded that provisionally winning bids count toward activity for
purposes of the activity rule.
125. The Bureaus will use a random number generator to select a
single provisionally winning bid in the event of identical high bid
amounts being submitted on a construction permit in a given round
(i.e., tied bids). Specifically, the FCC Auction System will assign a
random number to each bid upon submission. The tied bid with the
highest random number wins the tiebreaker, and becomes the
provisionally winning bid. Bidders, regardless of whether they hold a
provisionally winning bid, 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.
v. Bidding
126. All bidding will take place remotely either through the FCC
Auction System or by telephonic bidding. There will be no on-site
bidding during Auction 94. Please note that telephonic bid assistants
are required to use a script when entering bids placed by telephone.
Telephonic bidders are therefore reminded to allow sufficient time to
bid by placing their calls well in advance of the close of a round. The
length of a call to place a telephonic bid may vary; please allow a
minimum of ten minutes.
127. A bidder's ability to bid on specific construction permits is
determined by two factors: (1) The construction permits selected on the
bidder's FCC Form 175 and (2) the bidder's eligibility. The bid
submission screens will allow bidders to submit bids on only those
construction permits the bidder selected on its FCC Form 175.
128. In order to access the bidding function of the FCC Auction
System, bidders must be logged in during the bidding round using the
passcode generated by the SecurID[supreg] token and a personal
identification number (``PIN'') created by the bidder. Bidders are
strongly encouraged to print a ``round summary'' for each round after
they have completed all of their activity for that round.
129. In each round, eligible bidders will be able to place bids on
a given construction permit in any of up to nine pre-defined bid
amounts. For each construction permit, the FCC Auction System will list
the acceptable bid amounts in a drop-down box. Bidders use the drop-
down box to select from among the acceptable bid amounts. The FCC
Auction System also includes an ``upload'' function that allows text
files containing bid information to be uploaded.
130. Until a bid has been placed on a construction permit, the
minimum acceptable bid amount for that permit will be equal to its
minimum opening bid amount. Once there are bids on a permit, minimum
acceptable bids for the following round will be determined.
131. During a round, an eligible bidder may submit bids for as many
construction permits as it wishes (providing that it is eligible to bid
on the specific permits), remove bids placed in the current bidding
round, or permanently reduce eligibility. If multiple bids are
submitted for the same construction permit in the same round, the
system takes the last bid entered as that bidder's bid for the round.
Bidding units associated with construction permits for which the bidder
has removed bids do not count towards current activity.
vi. Bid Removal and Bid Withdrawal
132. In Auction 94, each bidder with the option of removing any
bids placed in a round provided that such bids are removed before the
close of that bidding round. By using the ``remove bids'' function in
the FCC Auction System, a bidder may effectively unsubmit any bid
placed within that round. A bidder removing a bid placed in the same
round is not subject to withdrawal payments. Removing a bid will affect
a bidder's activity because a removed bid no longer counts toward
bidding activity for the round. Once a round closes, a bidder may no
longer remove a bid.
133. The Bureaus will prohibit bidders from withdrawing any bids
after the round in which the bids were placed has closed. Bidders are
cautioned to select bid amounts carefully because no bid withdrawals
will be allowed, even if a bid was mistakenly or erroneously made.
vii. Round Results
134. Reports reflecting bidders' identities for Auction 94 will be
available before and during the auction. Thus, bidders will know in
advance of this auction the identities of the bidders against which
they are bidding.
135. Bids placed during a round will not be made public until the
conclusion of that round. After a round closes, the Bureaus will
compile reports of all bids placed, current provisionally winning bids,
new minimum acceptable bid amounts for the following round, whether the
construction permit is FCC held, and bidder eligibility status (bidding
eligibility and activity rule waivers), and post the reports for public
access.
viii. Auction Announcements
136. The Commission will use auction announcements to report
necessary information such as schedule changes. All auction
announcements will be available by clicking a link in the FCC Auction
System.
V. Post-Auction Procedures
137. Shortly after bidding has ended, the Commission will issue a
public notice declaring the auction closed, identifying the winning
bidders, and establishing the deadlines for
[[Page 2273]]
submitting down payments, final payments, and the long-form
applications (FCC Forms 301).
A. Down Payments
138. Within ten business days after release of the auction closing
public notice, each winning bidder must submit sufficient funds (in
addition to its upfront payment) to bring its total amount of money on
deposit with the Commission for Auction 94 to twenty percent of the net
amount of its winning bids (gross bids less any applicable new entrant
bidding credits).
B. Final Payments
139. Each winning bidder will be required to submit the balance of
the net amount of its winning bids within ten business days after the
applicable deadline for submitting down payments.
C. Long-Form Application (FCC Form 301)
140. The Commission's rules currently provide that within thirty
days following the close of bidding and notification to the winning
bidders, unless a longer period is specified by public notice, winning
bidders must electronically submit a properly completed long-form
application (FCC Form 301, Application for Construction Permit for
Commercial Broadcast Station), and required exhibits for each
construction permit won through Auction 94. Winning bidders claiming
new entrant status must include an exhibit demonstrating their
eligibility for the bidding credit. Further instructions on these and
other filing requirements will be provided to winning bidders in the
auction closing public notice.
D. Default and Disqualification
141. Any winning bidder that defaults or is disqualified after the
close of the 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) will be subject to the payments described in 47 CFR
1.2104(g)(2). This payment consists of a deficiency payment, equal to
the difference between the amount of the Auction 94 bidder's winning
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. The percentage of the
applicable bid to be assessed as an additional payment for defaults in
Auction 94 is Twenty percent of the applicable bid.
E. Refund of Remaining Upfront Payment Balance
142. After the auction, applicants that are not winning bidders or
are winning bidders whose upfront payment exceeded the total net amount
of their winning bids may be entitled to a refund of some or all of
their upfront payment. All refunds will be returned to the payer of
record, as identified on the FCC Form 159, unless the payer submits
written authorization instructing otherwise. Bidders that drop out of
the auction completely (have exhausted all of their activity rule
waivers and have no remaining bidding eligibility) may request a refund
of their upfront payments before the close of the auction.
Federal Communications Commission.
Gary D. Michaels,
Deputy Chief, Auctions and Spectrum Access Division, WTB.
[FR Doc. 2013-00347 Filed 1-9-13; 8:45 am]
BILLING CODE 6712-01-P