Federal Register: July 9, 2002 (Volume 67, Number 131)
DOCID: FR Doc 02-16096
FEDERAL COMMUNICATIONS COMMISSION
Federal Communications Commission
CFR Citation: 47 CFR Parts 1, 21, 22, 24, 25, 27, 73, 74, 80, 90, 95, 100, and
DA ID: [DA 02-847]
NOTICE: RULES
ACTION: Common carrier services:
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Competitive Bidding Procedures
DATES: Effective August 8, 2002.
DOCUMENT SUMMARY:
This document makes conforming edits to service-specific competitive bidding rules and portions of the part 1 general competitive bidding rules in accordance with the authority delegated by the Commission. These conforming edits further the Wireless Telecommunication Bureau's (``Bureau'') continuing efforts to streamline its procedures in accordance with the Commission's biennial regulatory review obligations. In addition to making these conforming edits, the Bureau also exercises its delegated authority to make certain ministerial conforming amendments, including edits to correct competitive bidding provisions that were inadvertently altered or deleted. The intended effect of this action is to eliminate approximately 66 pages of redundant or unnecessary rules from the Code of Federal Regulations.
SUMMARY:
Wireless telecommunications services—; Competitive bidding procedures,
SUPPLEMENTAL INFORMATION
This is a summary of the Competitive Bidding Order adopted and released on April 11, 2002. After release of the order, the Bureau released three errata which made minor corrections to the order. The first two errata were incorporated into the version of the Competitive Bidding Order published in the FCC Record (17 FCC Rcd 6534 (WTB 2002)). The third erratum was released on June 14, 2002, DA 021414. All three errata have been incorporated in the text of the rules accompanying this Federal Register summary. The full text of these documents are available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW, Room CYA257, Washington, DC, 20554. These documents may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW, Room CYB402, Washington, DC, 20554, telephone 2028632893, facsimile 202 8632898, or via email qualexint@aol.com. I. Introduction
1. In the Competitive Bidding Order, the Wireless Telecommunications Bureau (``Bureau'') makes conforming edits to servicespecific competitive bidding rules and portions of the part 1 general competitive bidding rules in accordance with the authority delegated by the Commission in the Part 1 Fifth Report and Order, 65 FR 52323 (August 29, 2000). These conforming edits further the Bureau's continuing efforts to streamline its procedures in accordance with the Commission's biennial regulatory review obligations set forth at section 11(a) of the Communications Act of 1934, as amended, and the recommendations contained in the 2000 Biennial Staff Report. In addition to making these conforming edits, the Bureau also exercises its delegated authority to make certain ministerial conforming amendments, including edits to correct competitive bidding provisions that were inadvertently altered or deleted by the Part 1 Third Report and Order, 63 FR 2315 (January 15, 1998), and the Competitive Bidding Sixth Report and Order, 60 FR 37786 (July 21, 1995). The Bureau also removes servicespecific provisions that are redundant with the Bureau's delegated authority to conduct auctions. The effect of today's action is to eliminate approximately 66 pages of redundant or unnecessary rules from the Code of Federal Regulations (``CFR''). II. Background
2. In the Competitive Bidding Second Report and Order, 59 FR 22980 (May 4, 1994), by amending part 1 of the Commission's rules to add a new subpart Q, the Commission established general competitive bidding rules that would apply to a variety of spectrum based services licensed by the Commission. In establishing these rules, the Commission intended that the general competitive bidding rules would apply to a particular service unless it adopted servicespecific rules that varied from the part 1 general competitive bidding rules. Subsequently, the Commission adopted competitive bidding rules for a number of services. A consequence of the adoption of these servicespecific competitive bidding rules was an unnecessary variation in procedures across services. Additionally, portions of the part 1 general competitive bidding rules were repeated almost verbatim in the servicespecific competitive bidding rules. Accordingly, in 1997, based upon its experience with the competitive bidding process, the Commission initiated the part 1 proceeding to establish a uniform set of provisions for all services subject to competitive bidding, eliminate unnecessary rules, and provide for a more consistent and efficient licensing process.
3. In the Part 1 Fifth Report and Order, the most recent
comprehensive Order in the part 1 proceeding, the Commission determined that it had
[[Page 45363]]
made the majority of the changes contemplated by its prior orders.
Therefore, the Commission recognized that it was appropriate to
commence the next step in the process, i.e., eliminating service
specific competitive bidding rules from the CFR that have either been
superseded by or are redundant with the part 1 general competitive
bidding rules. Accordingly, the Commission delegated to the Bureau the
authority to make conforming edits to the CFR consistent with the part 1 proceeding.
III. Discussion
4. Pursuant to our delegated authority, the Competitive Bidding Order identifies and removes servicespecific competitive bidding rules that have been superseded or made redundant by the part 1 general competitive bidding rules. In those instances in which servicespecific departures from the part 1 general competitive bidding rules were tailored for a particular service, the Bureau retains such rules. In addition, pursuant to the Bureau's delegated authority to make ministerial conforming edits to Commission rules, the Bureau restores and revises certain rule sections that were inadvertently altered, deleted, or misstated.
5. As explained, the Bureau modifies or removes servicespecific competitive bidding rules in the following areas: (i) Scope of service specific competitive bidding rules; (ii) competitive bidding design options; (iii) competitive bidding mechanisms; (iv) bidding application and certification procedures, and prohibition of collusion; (v) submission of upfront payments; (vi) submission of down and full payments, and filing of longform applications; (vii) procedures for filing petitions to deny against longform applications; (viii) license grant, denial, default, and disqualification; (ix) designated entities; (x) unjust enrichment in license assignment or transfer of control; (xi) ownership disclosure requirements for short and longform applications; and (xii) definitions. Also, technical edits are made to Commission rules that refer to servicespecific competitive bidding rules that have been removed or modified.
6. Scope of servicespecific competitive bidding rules. Each set of servicespecific competitive bidding rules contains a provision that provides that the general competitive bidding rules set forth at part 1, subpart Q of the Commission's rules apply unless the service specific rules indicate otherwise. This means that servicespecific competitive bidding rules are necessary only to specify departures from or supplemental procedures to the part 1 competitive bidding rules. The Bureau adopts uniform language stating this proposition in all services subject to competitive bidding and modifies the following service specific rules: Secs. 21.950; 22.201; 22.228; 22.960; 24.301; 24.701; 25.401; 27.201; 27.501(a); 27.701; 73.3572(e)(2), (f); 73.5000(a); 80.1251; 90.801; 90.901; 90.1001; 90.1101; 95.816(a); 100.71; 101.537; 101.1101; 101.1201; and 101.1317.
7. Competitive bidding design options. Section 1.2103 of the Commission's rules outlines the general competitive bidding design options (or the different competitive bidding methodologies) for services or classes of services subject to competitive bidding. These competitive bidding design options include: simultaneous multipleround auctions (using remote or onsite electronic bidding); sequential multipleround auctions (using either oral ascending or remote and/or onsite electronic bidding); sequential or simultaneous singleround auctions (using either sealed paper or remote and/or onsite electronic bidding); combinatorial (package/contingent) bidding auctions; and realtime bidding in all electronic auction designs. The following servicespecific rules, which are redundant with all or part of Sec. 1.2103, are removed: Secs. 21.951(a)(a)(1); 22.203; 22.961; 24.702; 90.802; 90.902; 90.1003; 100.72; 101.1102; and 101.1202.
8. Competitive bidding mechanisms. Section 1.2104 of the Commission's rules describes the mechanisms used to implement the Commission's competitive bidding design provisions. This rule also sets forth the treatment of bid withdrawal, down and full payment default, and bidder disqualification. The following servicespecific rules redundant with all or part of the competitive bidding design mechanism provisions of Sec. 1.2104 are modified or removed: Secs. 21.951(a)(2) (c); 22.205; 22.962; 25.402; 27.202; 73.5001; 90.803; 90.903(c)(f); 90.1005; 90.1015(b); 100.73; 101.1103; and 101.1203. Also, the following servicespecific rules, which conflict or are redundant with all or part of the bid withdrawal, down or full payment default, and disqualification payment rules of Sec. 1.2104, are removed: Secs. 21.959(a)(b); 22.207; 22.215(b); 22.963; 24.704; 27.203; 73.5004(a); 90.805; 90.905; 90.1007; 100.74; and 100.78(b).
9. Bidding application and certification procedures; prohibition of collusion. Section 1.2105 of the Commission's rules describes the shortform application (``FCC Form 175'') and certification procedures and the prohibition against applicant collusion. Section 1.2105 sets forth the information and certifications that applicants must provide to participate in an auction. This section also prohibits applicants from communicating with each other about bids, bidding strategies, or settlements if the applicants are bidding on licenses in the same geographic area unless applicants are members of bidding arrangements identified on a bidder's shortform application. This prohibition period commences at the shortform application filing deadline and concludes at the postauction down payment deadline. The following servicespecific rules, which are redundant with all or part of the part 1 shortform application and certification procedures in Sec. 1.2105, are removed in whole or in part: Secs. 21.952; 22.209; 22.227; 22.964; 24.709(a)(4)(5); 27.204(a)(b); 90.806; 90.906; 90.1009; 100.75; 101.531(a); 101.1104; and 101.1204. Also, the following servicespecific rules, which are redundant with all or part of the prohibition on collusion in Sec. 1.2105, are modified or removed in whole or in part: Secs. 21.953; 25.405; 27.204(c); and 100.79.
10. Submission of upfront payments. Section 1.2106 of the Commission's rules describes the procedures for submitting upfront payments, i.e., the sums an applicant that complies with the shortform application requirements tenders to the Commission before an auction in order to be qualified to bid. The following servicespecific rules, which conflict or are redundant with all or part of Sec. 1.2106 of the Commission's rules, are removed in whole or in part: Secs. 21.954; 22.211(a); 22.965(a); 24.706(a), (c); 24.711(a)(1); 24.716(a)(1); 27.205; 73.5003(a); 90.807(a); 90.907(a); 90.1011(a); 100.76(a); 101.1105(a); and 101.1205(a).
11. Submission of down and full payments, and filing of longform
applications. Section 1.2107 of the Commission's rules describes the
procedures for submitting down and full payments and filing the long
form application (``FCC Form 601''). The Bureau recognizes that other
licensing bureaus may use different FCC Forms for their longform
application. The down payment is the sum that the winning bidder(s)
must tender to the Commission after the auction closes to bring its
total deposit(s) up to twenty (20) percent of its high bid(s). This
payment assures the Commission that the winning bidder is able to
tender the full amount of its bid when it later comes due. Unless
otherwise specified by public notice, the down payment must be made
within ten (10) business days after the winning bidder is notified [[Page 45364]]
that it is the high bidder for a license(s). The Commission relies upon
the longform application to determine whether the winning bidder is
qualified to be a licensee. The longform application must be submitted
within ten (10) business days after the winning bidder is notified that
it is the high bidder. After submission of the down payment and long
form application, the winning bidder must submit the full payment due
on the license(s) within ten (10) business days of notification that
the license(s) is ready for grant, unless it qualifies to make
installment payments. If the winning bidder fails to make the full
payment within this time period, it is afforded an additional ten (10)
day period to make full payment, provided that it also pays a late fee
equal to five (5) percent of the amount due. The following service
specific rules, which conflict or are redundant with all or part of
Sec. 1.2107 of the Commission's rules, are modified or removed in whole
or in part: Secs. 21.955(a), (c); 21.958; 22.211(b); 22.213; 22.965(b);
24.706(b); 24.711(a)(2); 24.716(a)(2); 25.404(a), (b); 27.206;
73.3573(f)(5)(i); 73.5003(b)(c); 74.1233(d)(5)(i); 90.807(b); 90.808;
90.907(b); 90.908; 90.1011(b); 90.1013; 100.76(b); 101.531; 101.1105(b); 101.1205(b); and 101.1206.
12. Procedures for filing petitions to deny against longform applications. Section 1.2108 of the Commission's rules describes the timing and procedures for filing petitions to deny a winning bidder's longform application. The period for filing a petition to deny commences after the Commission releases a public notice announcing that a longform application has been accepted for filing. Section 1.2108 also provides that the length of time to file a petition to deny may vary on a servicespecific basis, but cannot exceed ten (10) days. The following servicespecific rules, which conflict or are redundant with all or part of Sec. 1.2108 of the Commission's rules, are modified or removed: Secs. 21.957; 90.1025(a); 101.1110; and 101.1207.
13. License grant, denial, default, and disqualification. Section 1.2109 of the Commission's rules addresses the consequences for a winning bidder that fails to timely make a down payment or full payment on its winning bid(s), withdraws its bid(s) after the auction has closed, violates the federal antitrust laws, or is otherwise found unqualified to be a licensee. The following servicespecific rules, which conflict or are redundant with all or part of Sec. 1.2109 of the Commission's rules, are modified or removed: Secs. 21.959(c)(e); 22.207; 22.215; 22.967; 24.708; 24.711(a)(2); 24.716(a)(2); 25.406; 27.208; 73.5004; 90.809(a); 90.909(a)(b); 90.1015; and 100.78(a).
14. Designated entities. Section 1.2110 of the Commission's rules sets forth certain provisions applicable to designated entitiessmall businesses, businesses owned by members of minority groups and/or women, and rural telephone companies. This section also provides the eligibility criteria for small businesses, defines terms specific to designated entities, and addresses bidding credits and other financial incentives available to certain designated entities. The following servicespecific rules, which are redundant with certain portions of Sec. 1.2110 of the Commission's rules, are removed: Secs. 21.955(b); 24.321(a)(7); 24.716(c); 27.210(b)(3)(ii), (c); 27.502(a)(7); 90.812(a); and 101.538(a)(8). The Bureau also modifies or removes the following servicespecific rules in whole or in part because they conflict or are redundant with Sec. 1.2110(b) of the Commission's rules, the part 1 eligibility criteria for small business status: Secs. 21.961(b)(2); 22.223(b)(2)(4); 24.321(a)(3)(5); 24.709(a)(2); 24.720(b)(3)(4); 27.210(b)(3); 27.502(a)(3)(5); 80.1252(b)(3)(4); 90.814(b)(2); 90.912(b)(3); 90.1021(b)(3); 90.1103(b)(3)(4); 95.816(c)(3)(4); 101.538(a)(5)(6); and 101.1209(b)(2). The Bureau modifies the following servicespecific rules by changing the term ``controlling principal'' to ``controlling interest'' to conform the rules with the Commission's general competitive bidding rules: Secs. 90.912(b)(1)(2); 90.913(a)(1); 90.1021(b)(1)(2); 90.1023(a)(1); 101.1109(a)(1); and 101.1112(b)(e). Additionally, the Bureau modifies or removes the following servicespecific rules in whole or in part because they conflict or are redundant with certain portions of Sec. 1.2110(c)(2) of the Commission's rules, the part 1 definition of ``controlling interest': Secs. 22.223(e); 22.225(e); 24.321(b); 27.502(b); 80.1252(c); 90.814(g); 90.1103(c); 95.816(d); and 101.538(b). The Bureau also modifies Sec. 24.709 to clarify its applicability to existing licensees.
15. Assignment or transfer of control: unjust enrichment. Section
1.2111 of the Commission's rules contains the procedures and reporting
requirements for assigning or transferring licenses. This section also
contains the rules for partitioning a license and disaggregating
spectrum, including the related matters of unjust enrichment, bidding
credits, installment payments, the length of the license term, and
construction requirements. The following servicespecific rules, which
are redundant with all or part of Sec. 1.2111 of the Commission's rules, are modified or removed in whole or in part:
Secs. 21.960(b)(5)(i)(ii), (d)(1); 22.217(b); 24.711(c); 24.712(c);
24.714(c); 24.716(d); 24.717(c); 27.15(c); 27.209(d); 73.5009(a);
90.810(b); 90.812(b); 90.813(c), (d)(2)(i); 90.910(b); 90.911(c);
90.1017(b); 95.823(c)(1); 101.56(i); 101.535(a)(1), (c); 101.1107(e); 101.1208(b); 101.1319(c); and 101.1323(c).
16. Ownership disclosure requirements for short and longform applications. Section 1.2112 of the Commission's rules contains the Commission's ownership disclosure requirements for both the shortform application, which is a prerequisite to participation in an auction, and the longform application, which is filed by the winning bidder(s) to assist the Commission in determining whether the winning bidder is qualified to be a licensee. The Bureau modifies or removes Secs. 22.225(b), 90.815(a)(b), 90.913(a)(b), 90.1023(a)(b), and 101.1109(a)(b) because these servicespecific rules are redundant with the ownership disclosure requirements set forth in Sec. 1.2112 of the Commission's rules. The Bureau also modifies Sec. 73.5009(b) to indicate that the ownership disclosure requirements found at Sec. 1.2112(a) do not apply to the assignment or transfer of licenses or construction permits in the broadcast services subject to competitive bidding.
17. Definitions. Section 1.2110 of the Commission's rules provides
uniform definitions for ``affiliate,'' ``audits,'' ``businesses owned
by members of minority groups and/or women,'' ``controlling
interests,'' ``eligibility for small business provisions,'' ``gross
revenues,'' and ``rural telephone company.'' The Bureau modifies or
removes the following rules in whole or in part because they conflict
or are redundant with Sec. 1.2110(c)(5) of the Commission's rules, the
part 1 definition of ``affiliate'': Secs. 21.961(d); 22.223(d);
22.225(e); 24.709(g); 24.720(l); 27.210(d); 90.814(h); 90.815(e);
90.912(d); 90.913(d)(3); 90.1021(d); 90.1023(e); 90.1323(e);
101.1112(h); and 101.1209(e). The Bureau modifies the definition of
``audits'' in Sec. 1.2110(m) to clarify that all applicants and
licensees claiming designated entity status are subject to audits.
Accordingly, the following servicespecific rules, which are redundant
with Sec. 1.2110(m) of the Commission's rules, are removed:
Secs. 21.960(g); 22.225(d); 24.709(d); 90.815(d); 90.913(d); 90.1023(d); and 101.1109(d). The Bureau also removes
[[Page 45365]]
the following servicespecific rules because they conflict or are
redundant with Sec. 1.2110(c)(3) of the Commission's rules, the part 1
definition for ``businesses owned by members of minority groups and/or
women'': Secs. 24.709(g); 24.720(i); 90.814(e)(f); and 90.815(e). The
Bureau removes the following servicespecific rules in whole or in part
because they conflict or are redundant with Sec. 1.2110(n) of the
Commission's rules, the part 1 definition of ``gross revenues'':
Secs. 21.961(c); 22.223(c); 22.225(e); 24.709(g); 24.720(f); 27.210(c);
90.814(d); 90.815(e); 90.912(c); 90.913(d)(3); 90.1021(c); 90.1023(e);
90.1323(e); 101.1112(g); and 101.1209(d). The Bureau also modifies or
removes the following servicespecific rules in whole or in part
because they are redundant with Sec. 1.2110(c)(4) of the Commission's
rules, the part 1 definition of ``rural telephone company'':
Secs. 24.720(e); 90.814(c); and 101.1209(c). The Bureau also adds a
definition of ``total assets'' to Sec. 1.2110 of the Commission's rules
to address the circumstances in which ``total assets'' information is
relevant to the determination of whether an applicant (or licensee) is
eligible for status as an entrepreneur. Accordingly, the Bureau deletes
the redundant portions of the following servicespecific rules that
pertain to ``total assets'': Secs. 24.709(g); 24.720(g); and 90.815(e).
18. Technical/ministerial edits to Commission rules. As a result of
the conforming edits made in this Order, some of the servicespecific
competitive bidding rules refer to sections of the part 1 general
competitive bidding rules that have been removed or modified.
Accordingly, the Bureau modifies the following rules to eliminate or
correct references to rules that have been removed or modified:
Secs. 1.2107(e); 1.2110(f)(3)(ii)(B), (f)(3)(iii)(iv), (vii);
21.956(b)(3); 21.960(b)(4); 22.223(b)(3); 24.321(c)(1); 24.709;
24.711(b)(b)(2); 24.712(a)(b); 24.714(d)(1), (d)(2)(i), (iii),
(d)(3)(i), (ii); 24.716(b)(b)(2); 24.717(a)(b); 24.720(b)(5), (c)(2), (j)(2), (k)(4), (n)(3)(4); 27.15(d)(e); 73.3571(h)(4)(i);
73.3573(f)(5)(ii); 73.5005(a); 73.5006(d); 80.1252(d); 90.705;
90.813(d)(2)(ii)(iv), (3)(ii), (e), (f); 90.814(a)(3); 90.910(a);
90.1017(a); 90.1025(b); 90.1103(d); 95.816(e); 95.823(c)(2),
(c)(2)(iii), (c)(3); 101.538(c); and 101.1319(b). Finally, the Bureau
corrects errors in the following rules pursuant to its delegated
authority under Sec. 0.331(d) to make ministerial conforming edits:
Secs. 22.227; 24.711(b)(3)(5); 73.5009; 90.809(b); 90.813(a); 90.909(c); 90.913(a); 95.816(f); and 101.538(a)(7).
IV. Ordering Clause
19. Parts 1, 21, 22, 24, 25, 27, 73, 74, 80, 90, 95, 100, and 101
of the Commission's rules are amended in accordance with the foregoing
Competitive Bidding Order and as set forth and becomes effective August
8, 2002. This action is taken pursuant to the authority delegated by
the Commission in the Part 1 Fifth Report and Order, 47 U.S.C. 155(c), and 47 CFR 0.131(c) and 0.331(d).
List of Subjects
47 CFR Parts 1 and 27
Communications common carriers.
47 CFR Parts 21, 22, 24, 25, 73, 74, 80, 90, 95, 100, and 101
Communications equipment.
Federal Communications Commission.
Kathleen O'Brien Ham,
Deputy Chief, Wireless Telecommunications Bureau.
Rule Changes
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1, 21, 22, 24, 25, 27, 73, 74, 80, 90, 95, 100, and 101 as follows:
PART 1PRACTICE AND PROCEDURE
1. The authority citation for part 1 continues to read as follows:
Authority: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309 and 325(e).
2. Amend Sec. 1.2107 by revising paragraph (e) to read as follows:
Sec. 1.2107 Submission of down payment and filing of longform applications.
* * * * *
(e) A winning bidder that seeks a bidding credit to serve a
qualifying tribal land, as defined in Sec. 1.2110(f)(3)(i), within a
particular market must indicate on the longform application (FCC Form
601) that it intends to serve a qualifying tribal land within that market.
* * * * *
3. Amend Sec. 1.2110 by revising paragraphs (b) introductory text,
(b)(1), (f)(3)(ii)(B), (f)(3)(iii), (f)(3)(iv), (f)(3)(vii), and (m)(1) and adding new paragraph (o) to read as follows:
Sec. 1.2110 Designated entities.
* * * * *
(b) Eligibility for small business and entrepreneur provisions.
(1) Size attribution. (i) The gross revenues of the applicant (or
licensee), its controlling interests and their affiliates shall be
attributed to the applicant and considered on a cumulative basis and
aggregated for purposes of determining whether the applicant (or
licensee) is eligible for status as a small business. An applicant
seeking status as a small business must disclose on its short and
longform applications, separately and in the aggregate, the gross
revenues of the applicant (or licensee), its controlling interests and their affiliates for each of the previous three years.
(ii) If applicable, the total assets of the applicant (or
licensee), its controlling interests and their affiliates shall be
attributed to the applicant and considered on a cumulative basis and
aggregated for purposes of determining whether the applicant (or
licensee) is eligible for status as an entrepreneur. An applicant
seeking status as an entrepreneur must disclose on its short and long
form applications, separately and in the aggregate, the gross revenues
of the applicant (or licensee), its controlling interests and their affiliates for each of the previous two years.
* * * * *
(f) * * *
(3) * * *
(ii) * * *
(B) In addition, within ninety (90) days after the filing deadline
for longform applications, the winning bidder must amend its longform
application and file a certification that it will comply with the
buildout requirements set forth in Sec. 1.2110(f)(vi) and consult with
the tribal government regarding the siting of facilities and deployment of service on the tribal land.
(iii) Bidding credit formula. Subject to the applicable bidding
credit limit set forth in Sec. 1.2110(f)(3)(iv), the bidding credit
shall equal three hundred thousand (300,000) dollars for the first two
hundred (200) square miles (518 square kilometers) of qualifying tribal
land, and fifteen hundred (1500) dollars for each additional square
mile (2.590 square kilometers) of qualifying tribal land above two hundred (200) square miles (518 square kilometers).
(iv) Bidding credit limit. If the high bid is equal to or less than
one million (1,000,000) dollars, the maximum bidding credit calculated
pursuant to Sec. 1.2110(f)(3)(iii) shall not exceed fifty (50) percent
of the high bid. If the high bid is greater than one million
(1,000,000) dollars, but equal to or less than two million (2,000,000)
dollars, the maximum bidding credit calculated pursuant to
Sec. 1.2110(f)(3)(iii) shall not exceed five hundred thousand (500,000)
dollars. If the high bid is greater than two million (2,000,000) dollars, the
[[Page 45366]]
maximum bidding credit calculated pursuant to Sec. 1.2110(f)(3)(iii) shall not exceed twentyfive (25) percent of the high bid.
* * * * *
(vii) Performance penalties. If a recipient of a bidding credit
under this section fails to provide the postconstruction certification
required by Sec. 1.2110(f)(3)(vi), then it shall repay the bidding
credit amount in its entirety, plus interest. The interest will be
based on the rate for tenyear U.S. Treasury obligations applicable on
the date the license is granted. Such payment shall be made within
thirty (30) days of the third anniversary of the initial grant of its license.
* * * * *
(m) * * *
(1) Applicants and licensees claiming eligibility shall be subject
to audits by the Commission, using inhouse and contract resources.
Selection for audit may be random, on information, or on the basis of other factors.
* * * * *
(o) Total assets. Total assets shall mean the book value (except
where generally accepted accounting principles (GAAP) require market
valuation) of all property owned by an entity, whether real or
personal, tangible or intangible, as evidenced by the most recently
audited financial statements or certified by the applicant's chief
financial offer or its equivalent if the applicant does not otherwise use audited financial statements.
PART 21DOMESTIC PUBLIC FIXED RADIO SERVICES
4. The authority citation for part 21 continues to read as follows:
Authority: Secs. 1, 2, 4, 201205, 208, 215, 218, 303, 307, 313,
403, 404, 410, 602, 48 Stat. as amended, 1064, 1066, 10701073,
1076, 1077, 1080, 1082, 1083, 1087, 1094, 1098, 1102; 47 U.S.C. 151,
154, 201205, 208, 215, 218, 303, 307, 313, 314, 403, 404, 602; 47 U.S.C. 552, 554.
5. Revise Sec. 21.950 to read as follows:
Sec. 21.950 MDS subject to competitive bidding.
Mutually exclusive initial applications for MDS licenses are subject to competitive bidding. The general competitive bidding procedures set forth in part 1, subpart Q of this chapter will apply unless otherwise provided in this part.
Sec. 21.951 through Sec. 21.953 [Removed and Reserved]
6. Remove and reserve Sec. 21.951 through Sec. 21.953.
7. Revise Sec. 21.954 to read as follows:
Sec. 21.954 Submission of upfront payments.
Applicants who are small businesses eligible for reduced upfront
payments will be required to submit an upfront payment amount in accordance with Sec. 21.960(c).
Sec. 21.955 [Removed and Reserved]
8. Remove and reserve Sec. 21.955.
9. Amend Sec. 21.956 by revising paragraph (b)(3) to read as follows:
Sec. 21.956 Filing of longform applications or statements of intention.
* * * * *
(b) * * *
(3) An exhibit complying with Secs. 1.2110(j) of this chapter and
21.960(e), if the winning bidder submitting the longfrom application
or statement of intention claims status as a designated entity. * * * * *
10. Revise Sec. 21.957 to read as follows:
Sec. 21.957 Comments on statements of intention.
In addition to the provisions of Sec. 21.30, parties wishing to comment or oppose the issuance of a BTA authorization in connection with the filing of a statement of intention by a winning bidder must do so prior to the Commission's issuance of the BTA authorization.
11. Revise Sec. 21.958 to read as follows:
Sec. 21.958 Issuance of BTA licenses.
A winning bidder who submitted a longform application for an MDS
station license within its BTA service area pursuant to Sec. 21.956(a)
will receive its BTA authorization concurrent with the grant of its MDS
conditional station license within its BTA service area. A winning
bidder who submitted a statement of intention with regard to its BTA
service area pursuant to Sec. 21.956(a) will receive its BTA
authorization following the Commission's review of its statement of
intention. The Commission will issue a BTA authorization to a winning
bidder within ten (10) business days following notification of receipt of full payment of the amount of the winning bid.
Sec. 21.959 [Removed and Reserved]
12. Remove and reserve Sec. 21.959.
13. Amend Sec. 21.960 by revising paragraph (b)(5) and removing paragraphs (d)(1), (d)(2) and (g) to read as follows:
Sec. 21.960 Designated entity provisions for MDS.
* * * * *
(b) * * *
(5) Unjust enrichment. If an eligible BTA authorization holder that
utilizes installment financing under this subsection seeks to
partition, pursuant to Sec. 21.931, a portion of its BTA containing
onethird or more of the population of the area within its control in
the licensed BTA to an entity not meeting the eligibility standards for
installment payments, the holder must make full payment of the
remaining unpaid principal and any unpaid interest accrued through the date of partition as a condition of approval.
* * * * *
Sec. 21.961 [Amended]
14. Amend Sec. 21.961 by removing paragraphs (b)(2), (c) and (d) and by redesignating paragraph (b)(3) as (b)(2).
PART 22PUBLIC MOBILE SERVICES
15. The authority citation for part 22 continues to read as follows:
Authority: 47 U.S.C. 154, 222, 303, 309, and 332.
16. Revise Sec. 22.201 to read as follows:
Sec. 22.201 Paging geographic area authorizations are subject to competitive bidding.
Mutually exclusive initial applications for paging geographic area licenses are subject to competitive bidding. The general competitive bidding procedures set forth in part 1, subpart Q of this chapter will apply unless otherwise provided in this subpart and part 90 of this chapter.
Sec. 22.203 through Sec. 22.211 [Removed and Reserved]
17. Remove and reserve Sec. 22.203 and Sec. 22.211.
18. Revise Sec. 22.213 to read as follows:
Sec. 22.213 Filing of longform applications.
After an auction, the Commission will not accept long form
applications for paging geographic authorizations from anyone other
than the auction winners and parties seeking partitioned authorizations
pursuant to agreements with auction winners under Sec. 22.221. Sec. 22.215 [Removed and Reserved]
19. Remove and reserve Sec. 22.215.
20. Revise Sec. 22.217 to read as follows:
Sec. 22.217 Bidding credit for small businesses.
A winning bidder that qualifies as a small business or a consortium
of small businesses as defined in Sec. 22.223(b)(1)(i) may use a
bidding credit of thirtyfive (35) percent to lower the cost of its
winning bid. A winning bidder that qualifies as a small business or
consortium of small businesses as defined in Sec. 22.223(b)(1)(ii) may use a bidding credit of twentyfive (25)
[[Page 45367]]
percent to lower the cost of its winning bid.
21. Amend Sec. 22.223 by removing paragraphs (b)(2), (b)(4), (c),
(d) and (e), redesignating paragraph (b)(3) as (b)(2) and by revising newly redesignated paragraph (b)(2) to read as follows:
Sec. 22.223 Definitions concerning competitive bidding process. * * * * *
(b) * * *
(2) A consortium of small businesses is a conglomerate organization
formed as a joint venture between or among mutually independent
business firms, each of which individually satisfies the definition of
a small business in paragraph (b)(1)(i) or (b)(1)(ii) of this section.
Each individual member must establish its eligibility as a small business, as defined in this section.
22. Revise Sec. 22.225 to read as follows:
Sec. 22.225 Certifications, disclosures, records maintenance, and definitions.
(a) Shortform applications: certifications and disclosure. In
addition to certifications and disclosures required by part 1, subpart
Q of this chapter, each applicant for a paging license which qualifies
as a small business or consortium of small businesses shall append the
following information as an exhibit to its FCC Form 175: the identity
of the applicant's controlling interest and affiliates, and, if a
consortium of small businesses, the members of the joint venture.
(b) Records maintenance. All winning bidders qualifying as small
businesses shall maintain at their principal place of business an
updated file of ownership, revenue, and asset information, including
any documents necessary to establish small businesses under
Sec. 22.223. Licensees (and their successorsininterest) shall
maintain such files for the term of the license. Applicants that do not
obtain the license(s) for which they applied shall maintain such files
until the grant of such license(s) is final, or one year from the date
of the filing of their shortform application (FCC Form 175), whichever is earlier.
(c) Definitions. The terms small business and consortium of small
businesses used in this section are defined in Sec. 22.223.
23. Revise Sec. 22.227 to read as follows:
Sec. 22.227 Petitions to deny and limitations on settlements.
(a) Procedures regarding petitions to deny longform applications
in the paging service will be governed by Sec. 1.939 of this chapter.
(b) The consideration that an individual or an entity will be
permitted to receive for agreeing to withdraw an application or
petition to deny will be limited by the provisions set forth in Sec. 1.935 of this chapter.
24. Revise Sec. 22.228 to read as follows:
Sec. 22.228 Cellular rural service area licenses subject to competitive bidding.
Mutually exclusive initial applications for Cellular Rural Service Area licenses are subject to competitive bidding. The general competitive bidding procedures set forth in part 1, subpart Q of this chapter will apply unless otherwise provided in this subpart.
25. Revise Sec. 22.960 to read as follows:
Sec. 22.960 Cellular unserved area radiotelephone licenses subject to competitive bidding.
Mutually exclusive initial applications for cellular unserved area Phase I and Phase II licenses filed after July 26, 1993 are subject to competitive bidding. The general competitive bidding procedures set forth in part 1, subpart Q of this chapter will apply unless otherwise provided in this subpart.
Secs. 22.961 through 22.967 [Removed and Reserved]
26. Remove and reserve Secs. 22.961 through 22.967. PART 24PERSONAL COMMUNICATIONS SERVICES
27. The authority citation for part 24 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302, 303, 309 and 332.
28. Revise Sec. 24.301 to read as follows:
Sec. 24.301 Narrowband PCS subject to competitive bidding.
Mutually exclusive initial applications for narrowband PCS service
licenses are subject to competitive bidding. The general competitive
bidding procedures set forth in part 1, subpart Q of this chapter will apply unless otherwise provided in this subpart.
29. Revise Sec. 24.321 to read as follows:
Sec. 24.321 Designated entities.
(a) Eligibility for small business provisions. (1) A small business
is an entity that, together with its controlling interests and
affiliates, has average gross revenues not exceeding $ 40 million for the preceding three years.
(2) A very small business is an entity that, together with its
controlling interests and affiliates, has average gross revenues not exceeding $ 15 million for the preceding three years.
(3) A consortium of small businesses (or a consortium of very small
businesses) is a conglomerate organization formed as a joint venture
between or among mutually independent business firms, each of which
individually satisfies the definition in paragraph (a)(1) of this
section (or each of which individually satisfies the definition in
paragraph (a)(2) of this section). Where an applicant or licensee is a
consortium of small businesses (or very small businesses), the gross
revenues of each small business (or very small business) shall not be aggregated.
(b) Bidding credits. (1) After August 7, 2000, a winning bidder
that qualifies as a small business or a consortium of small businesses
as defined in this section may use the bidding credit specified in
Sec. 1.2110(f)(2)(iii) of this chapter. A winning bidder that qualifies
as a very small business or a consortium of very small businesses as
defined in this section may use the bidding credit specified in Sec. 1.2110(f)(2)(ii) of this chapter.
(2)(i) Businesses owned by members of minority groups and women,
including small businesses owned by members of minority groups and
women, that are winning bidders on nationwide licenses on Channel 5,
Channel 8, and Channel 11 prior to August 7, 2000 will be eligible for a twentyfive (25) percent bidding credit.
(ii) Businesses owned by members of minority groups and women,
including small businesses owned by members of minority groups and
women, that are winning bidders on regional licenses on Channel 13 and
Channel 17 prior to August 7, 2000 will be eligible for a forty (40) percent bidding credit.
(c) Installment payments. Small businesses, including small
businesses owned by members of minority groups and women, that are
winning bidders on any regional license prior to August 7, 2000 will be
eligible to pay the full amount of their winning bids in installments
over the term of the license pursuant to the terms set forth in Sec. 1.2110(g) of this chapter.
30. Revise Sec. 24.701 to read as follows:
Sec. 24.701 Broadband PCS subject to competitive bidding.
Mutually exclusive initial applications for broadband PCS service
licenses are subject to competitive bidding. The general competitive
bidding procedures set forth in part 1, subpart Q of this chapter will apply unless otherwise provided in this subpart.
Sec. 24.702 [Removed and Reserved]
31. Remove and reserve Sec. 24.702.
[[Page 45368]]
Sec. 24.704 [Removed and Reserved]
32. Remove and reserve Sec. 24.704.
Sec. 24.706 [Removed and Reserved]
33. Remove and reserve Sec. 24.706.
Sec. 24.708 [Removed and Reserved]
34. Remove and reserve Sec. 24.708.
35. Revise Sec. 24.709 to read as follows:
Sec. 24.709 Eligibility for licenses for frequency Blocks C or F.
(a) General rule for licenses offered for closed bidding. (1) No
application is acceptable for filing and no license shall be granted to
a winning bidder in closed bidding for frequency block C or frequency
block F, unless the applicant, together with its affiliates and persons
or entities that hold interests in the applicant and their affiliates,
have had gross revenues of less than $125 million in each of the last
two years and total assets of less than $500 million at the time the
applicant's shortform application (Form 175) is filed.
(2) Any licensee awarded a license won in closed bidding pursuant
to the eligibility requirements of this section (or pursuant to
Sec. 24.839(a)(2)) shall maintain its eligibility until at least five
years from the date of initial license grant, except that a licensee's
(or other attributable entity's) increased gross revenues or increased
total assets due to nonattributable equity investments (i.e., from
sources whose gross revenues and total assets are not considered under
paragraph (b) of this section), debt financing, revenue from operations
or other investments, business development, or expanded service shall not be considered.
(3) Tiers. (i) For purposes of determining spectrum to which the
eligibility requirements of this section are applicable, the BTA
service areas (see Sec. 24.202(b)) are divided into two tiers according to their population as follows:
(A) Tier 1: BTA service areas with population equal to or greater than 2.5 million;
(B) Tier 2: BTA service areas with population less than 2.5 million.
(ii) For Auction No. 35, the population of individual BTA service
areas will be based on the 1990 census. For auctions beginning after
the start of Auction No. 35, the population of individual BTA service
areas will be based on the most recent available decennial census.
(4) Application of eligibility requirements. (i) The following
categories of licenses will be subject to closed bidding pursuant to
the eligibility requirements of this section in auctions that begin after the effective date of this paragraph.
(A) For Tier 1 BTAs, one of the 10 MHz C block licenses (18951900 MHz paired with 19751980 MHz);
(B) For Tier 2 BTAs, two of the 10 MHz C block licenses (18951900
MHz paired with 19751980 MHz; 19001905 MHz paired with 19801985 MHz) and all 15 MHz C block licenses.
(ii) Notwithstanding the provisions of paragraph (a)(4)(i) of this
section, any C block license for operation on spectrum that has been
offered, but not won by a bidder, in closed bidding in any auction
beginning on or after March 23, 1999, will not be subject in a
subsequent auction to closed bidding pursuant to the eligibility requirements of this section.
(5) Special rule for licensees disaggregating or returning certain spectrum in frequency block C.
(i) In addition to entities qualifying for closed bidding under
paragraph (a)(1) of this section, any entity that was eligible for and
participated in the auction for frequency block C, which began on
December 18, 1995, or the reauction for frequency block C, which began
on July 3, 1996, will be eligible to bid for C block licenses offered
in closed bidding in any reauction of frequency block C spectrum that begins within two years of March 23, 1999.
(ii) In cases of merger, acquisition, or other business combination
of entities, where each of the entities is eligible to bid for C block
licenses offered in closed bidding in any reauction of C block spectrum
on the basis of the eligibility exception set forth in paragraph
(a)(5)(i) of this section, the resulting entity will also be eligible
for the exception specified in paragraph (a)(5)(i) of this section.
(iii) In cases of merger, acquisition, or other business
combination of entities, where one or more of the entities are
ineligible for the exception set forth in paragraph (a)(5)(i) of this
section, the resulting entity will not be eligible pursuant to
paragraph (a)(5)(i) of this section unless an eligible entity possesses de jure and de facto control over the resulting entity.
(iv) The following restrictions will apply for any reauction of frequency block C spectrum conducted after March 24, 1998:
(A) Applicants that elected to disaggregate and surrender to the
Commission 15 MHz of spectrum from any or all of their frequency block
C licenses, as provided in Amendment of the Commission's Rules
Regarding Installment Payment Financing for Personal Communications
Services (PCS) Licensees, Second Report and Order and Further Notice of
Proposed Rule Making, WT Docket No. 9782, 12 FCC Rcd 16,436 (1997), as
modified by the Order on Reconsideration of the Second Report and
Order, WT Docket No. 9782, FCC 9846 (rel. Mar. 24, 1998), will not be
eligible to apply for such disaggregated spectrum until 2 years from the start of the reauction of that spectrum.
(B) Applicants that surrendered to the Commission any of their
frequency block C licenses, as provided in Amendment of the
Commission's Rules Regarding Installment Payment Financing for Personal
Communications Services (PCS) Licensees, Second Report and Order and
Further Notice of Proposed Rule Making, WT Docket No. 9782, 12 FCC Rcd
16,436 (1997), as modified by the Order on Reconsideration of the
Second Report and Order, WT Docket No. 9782, FCC 9846 (rel. Mar. 24,
1998), will not be eligible to apply for the licenses that they
surrendered to the Commission until 2 years from the start of the
reauction of those licenses if they elected to apply a credit of 70% of
the down payment they made on those licenses toward the prepayment of licenses they did not surrender.
(b) Exceptions to general rule.
(1) Scope. The following provisions apply to licenses acquired in
Auctions No. 5, 10, 11 or 22, or pursuant to Sec. 24.839(a)(2) or (a)(3) prior to October 30, 2000.
(i) Small business consortia. Where an applicant (or licensee) is a
consortium of small businesses, the gross revenues and total assets of each small business shall not be aggregated.
(ii) Publiclytraded corporations. Where an applicant (or licensee)
is a publicly traded corporation with widely dispersed voting power,
the gross revenues and total assets of a person or entity that holds an
interest in the applicant (or licensee), and its affiliates, shall not be considered.
(iii) 25 Percent equity exception. The gross revenues and total
assets of a person or entity that holds an interest in the applicant
(or licensee), and its affiliates, shall not be considered so long as:
(A) Such person or entity, together with its affiliates, holds only
nonattributable equity equaling no more than 25 percent of the applicant's (or licensee's) total equity;
(B) Except as provided in paragraph (b)(1)(v) of this section, such
person or entity is not a member of the applicant's (or licensee's) control group; and
(C) The applicant (or licensee) has a control group that complies
with the minimum equity requirements of paragraph (b)(1)(v) of this section, and, if the applicant (or licensee) is a
[[Page 45369]]
corporation, owns at least 50.1 percent of the applicant's (or
licensee's) voting interests, and, if the applicant (or licensee) is a
partnership, holds all of its general partnership interests.
(iv) 49.9 Percent equity exception. The gross revenues and total
assets of a person or entity that holds an interest in the applicant
(or licensee), and its affiliates, shall not be considered so long as:
(A) Such person or entity, together with its affiliates, holds only
nonattributable equity equaling no more than 49.9 percent of the applicant's (or licensee's) total equity;
(B) Except as provided in paragraph (b)(1)(vi) of this section,
such person or entity is not a member of the applicant's (or licensee's) control group; and
(C) The applicant (or licensee) has a control group that complies
with the minimum equity requirements of paragraph (b)(1)(vi) of this
section and, if the applicant (or licensee) is a corporation, owns at
least 50.1 percent of the applicant's (or licensee's) voting interests,
and, if the applicant (or licensee) is a partnership, holds all of its general partnership interests.
(v) Control group minimum 25 percent equity requirement. In order
to be eligible to exclude gross revenues and total assets of persons or
entities identified in paragraph (b)(1)(iii) of this section, and
applicant (or licensee) must comply with the following requirements:
(A) Except for an applicant (or licensee) whose sole control group
member is a preexisting entity, as provided in paragraph (b)(1)(v)(B)
of this section, at the time the applicant's shortform application
(Form 175) is filed and until at least three years following the date
of initial license grant, the applicant's (or licensee's) control group
must own at least 25 percent of the applicant's (or licensee's) total equity as follows:
(1) At least 15 percent of the applicant's (or licensee's) total
equity must be held by qualifying investors, either unconditionally or
in the form of options exercisable, at the option of the holder, at any
time and at any exercise price equal to or less than the market value
at the time the applicant files its shortform application (Form 175);
(2) Such qualifying investors must hold 50.1 percent of the voting
stock and all general partnership interests within the control group,
and must have de facto control of the control group and of the applicant;
(3) The remaining 10 percent of the applicant's (or licensee's)
total equity may be owned, either unconditionally or in the form of
stock options, by any of the following entities, which may not comply with Sec. 24.720(i)(1):
(i) Institutional Investors;
(ii) Noncontrolling existing investors in any preexisting entity that is a member of the control group;
(iii) Individuals that are members of the applicant's (or licensee's) management; or
(iv) Qualifying investors, as specified in Sec. 24.720(i)(4).
(4) Following termination of the threeyear period specified in
paragraph (b)(1)(v)(A) of this section, qualifying investors must
continue to own at least 10 percent of the applicant's (or licensee's)
total equity unconditionally or in the form of stock options subject to
the restrictions in paragraph (b)(1)(v)(A)(1) of this section. The
restrictions specified in paragraphs (b)(1)(v)(A)(3)(i) through
(b)(1)(v)(A)(3)(iv) of this section no longer apply to the remaining equity after termination of such threeyear period.
(B) At the election of an applicant (or licensee) whose control
group's sole member is a preexisting entity, the 25 percent minimum
equity requirements set forth in paragraph (b)(1)(v)(A) of this section
shall apply, except that only 10 percent of the applicant's (or
licensee's) total equity must be held in qualifying investors, and that
the remaining 15 percent of the applicant's (or licensee's) total
equity may be held by qualifying investors, or noncontrolling existing
investors in such control group member or individuals that are members
of the applicant's (or licensee's) management. These restrictions on
the identity of the holder(s) of the remaining 15 percent of the
licensee's total equity no longer apply after termination of the three
year period specified in paragraph (b)(1)(v)(A) of this section.
(vi) Control group minimum 50.1 percent equity requirement. In
order to be eligible to exclude gross revenues and total assets of
persons or entities identified in paragraph (b)(1)(iv) of this section,
an applicant (or licensee) must comply with the following requirements:
(A) Except for an applicant (or licenses) whose sole control group
member is a preexisting entity, as provided in paragraph (b)(1)(vi)(B)
of this section, at the time the applicant's shortform application
(Form 175) is filed and until at least three years following the date
of initial license grant, the applicant's (or licensee's) control group
must own at least 50.1 percent of the applicant's (or licensee's) total equity as follows:
(1) At least 30 percent of the applicant's (or licensee's) total
equity must be held by qualifying investors, either unconditionally or
in the form of options, exercisable at the option of the holder, at any
time and at any exercise price equal to or less than the market value
at the time the applicant files its shortform application (Form 175);
(2) Such qualifying investors must hold 50.1 percent of the voting
stock and all general partnership interests within the control group
and must have de facto control of the control group and of the applicant;
(3) The remaining 20.1 percent of the applicant's (or licensee's) total equity may be owned by qualifying investors, either
unconditionally or in the form of stock options not subject to the
restrictions of paragraph (b)(1)(vi)(A)(1) of this section, or by any
of the following entities which may not comply with Sec. 24.720(i)(1):
(i) Institutional investors, either unconditionally or in the form of stock options;
(ii) Noncontrolling existing investors in any preexisting entity
that is a member of the control group, either unconditionally or in the form of stock options;
(iii) Individuals that are members of the applicant's (or
licensee's) management, either unconditionally or in the form of stock options; or
(iv) Qualifying investors, as specified in Sec. 24.720(i)(4).
(4) Following termination of the threeyear period specified in
paragraph (b)(1)(vi)(A) of this section, qualifying investors must
continue to own at least 20 percent of the applicant's (or licensee's)
total equity unconditionally or in the form of stock options subject to
the restrictions in paragraph (b)(1)(vi)(A)(1) of this section. The
restrictions specified in paragraph (b)(1)(vi)(A)(3)(i) through
(b)(1)(vi)(A)(3)(iv) of this section no longer apply to the remaining equity after termination of such threeyear period.
(B) At the election of an applicant (or licensee) whose control
group's sole member is a preexisting entity, the 50.1 percent minimum
equity requirements set forth in paragraph (b)(1)(vi)(A) of this
section shall apply, except that only 20 percent of the applicant's (or
licensee's) total equity must be held by qualifying investors, and that
the remaining 30.1 percent of the applicant's (or licensee's) total
equity may be held by qualifying investors, or noncontrolling existing
investors in such control group member or individuals that are members
of the applicant's (or licensee's) management. These restrictions on
the identity of the holder(s) of the remaining 30.1 percent [[Page 45370]]
of the licensee's total equity no longer apply after termination of the
threeyear period specified in paragraph (b)(1)(vi)(A) of this section.
(vii) Calculation of certain interests. Except as provided in
paragraphs (b)(1)(v) and (b)(1)(vi) of this section, ownership
interests shall be calculated on a fully diluted basis; all agreements
such as warrants, stock options and convertible debentures will
generally be treated as if the rights thereunder already have been
fully exercised, except that such agreements may not be used to appear
to terminate or divest ownership interests before they actually do so,
in order to comply with the nonattributable equity requirements in
paragraphs (b)(1)(iii)(A) and (b)(1)(iv)(A) of this section.
(viii) Aggregation of affiliate interests. Persons or entities that
hold interest in an applicant (or licensee) that are affiliates of each other or have an identify of interests identified in
Sec. 1.2110(c)(5)(iii) will be treated as though they were one person
or entity and their ownership interests aggregated for purposes of
determining an applicant's (or licensee's) compliance with the
nonattributable equity requirements in paragraphs (b)(1)(iii)(A) and (b)(1)(iv)(A) of this section.
Example 1 for paragraph (b)(1)(viii). ABC Corp. is owned by individuals, A, B, and C, each having an equal onethird voting interest in ABC Corp. A and B together, with twothirds of the stock have the power to control ABC Corp. and have an identity of interest. If A & B invest in DE Corp., a broadband PCS applicant for block C, A and B's separate interests in DE Corp. must be aggregated because A and B are to be treated as one person.
Example 2 for paragraph (b)(1)(viii). ABC Corp. has subsidiary
BC Corp., of which it holds a controlling 51 percent of the stock.
If ABC Corp. and BC Corp., both invest in DE Corp., their separate
interests in DE Corp. must be aggregated because ABC Corp. and BC Corp. are affiliates of each other.
(2) The following provisions apply to licenses acquired pursuant to
Sec. 24.839(a)(2) or (a)(3) on or after October 30, 2000. In addition
to the eligibility requirements set forth at 24.709(a) and (b),
applicants and/or licensees seeking to acquire C and/or F block
licenses pursuant to 24.839(a)(2) or (a)(3) will be subject to the
controlling interest standard in 1.2110(c)(2) of this chapter for
purposes of determining unjust enrichment payment obligations. See Sec. 1.2111 of this chapter.
(c) Shortform and longform applications: Certifications and disclosure.
(1) Shortform application. In addition to certifications and
disclosures required by part 1, subpart Q of this chapter, each
applicant to participate in closed bidding for frequency block C or
frequency block F shall certify on its shortform application (Form
175) that it is eligible to bid on and obtain such license(s), and (if
applicable) that it is eligible for designated entity status pursuant
to this section and Sec. 24.720, and shall append the following information as an exhibit to its Form 175:
(i) For all applicants: The applicant's gross revenues and total
assets, computed in accordance with paragraphs (a) of this section and Sec. 1.2110(b)(1) through (b)(2) of this chapter.
(ii) For all applicants that participated in Auction Nos. 5, 10, 11, and/or 22:
(A) The identity of each member of the applicant's control group,
regardless of the size of each member's total interest in the applicant, and the percentage and type of interest held;
(B) The citizenship and the gender or minority group classification
for each member of the applicant's control group if the applicant is
claiming status as a business owned by members of minority groups and/ or women;
(C) The status of each control group member that is an
institutional investor, an existing investor, and/or a member of the applicant's management;
(D) The identify of each affiliate of the applicant and each
affiliate of individuals or entities identified pursuant to paragraphs (c)(1)(ii)(A) and (c)(1)(ii)(C) of this section;
(E) A certification that the applicant's sole control group member
is a preexisting entity, if the applicant makes the election in either
paragraph (b)(1)(v)(B) or (b)(1)(vi)(B)of this section; and
(F) For an applicant that is a publicly traded corporation with widely disbursed voting power:
(1) A certified statement that such applicant complies with the
requirements of the definition of publicly traded corporation with widely disbursed voting power set forth in Sec. 24.720(h);
(2) The identify of each affiliate of the applicant.
(iii) For each applicant claiming status as a small business
consortium, the information specified in paragraph (c)(1)(ii) of this section, for each member of such consortium.
(2) Longform application. In addition to the requirements in
subpart I of this part and other applicable rules (e.g., Secs. 20.6(e)
and 20.9(b) of this chapter), each applicant submitting a longform
application for a license(s) for frequency block C or F shall in an exhibit to its longform application:
(i) Disclose separately and in the aggregate the gross revenues and
total assets, computed in accordance with paragraphs (a) and (b) of
this section, for each of the following: The applicant; the applicant's
affiliates, the applicant's control group members; the applicant's
attributable investors; and affiliates of its attributable investors;
(ii) List and summarize all agreements or other instruments (with
appropriate references to specific provisions in the text of such
agreements and instruments) that support the applicant's eligibility
for a license(s) for frequency block C or frequency block F and its
eligibility under Secs. 24.711, 24.712, 24.714 and 24.720, including
the establishment of de facto and de jure control; such agreements and
instruments include articles of incorporation and bylaws, shareholder
agreements, voting or other trust agreements, partnership agreements,
management agreements, joint marketing agreements, franchise
agreements, and any other relevant agreements (including letters of intent), oral or written; and
(iii) List and summarize any investor protection agreements and
identify specifically any such provisions in those agreements
identified pursuant to paragraph (c)(2)(ii) of this section, including
rights of first refusal, supermajority clauses, options, veto rights,
and rights to hire and fire employees and to appoint members to boards of directors or management committees.
(3) Records maintenance. All applicants, including those that are
winning bidders, shall maintain at their principal place of business an
updated file of ownership, revenue and asset information, including
those documents referenced in paragraphs (c)(2)(ii) and (c)(2)(iii) of
this section and any other documents necessary to establish eligibility
under this section or under the definitions of small business and/or
business owned by members of minority groups and/or women. Licensees
(and their successors in interest) shall maintain such files for the
term of the license. Applicants that do not obtain the license(s) for
which they applied shall maintain such files until the grant of such
license(s) is final, or one year from the date of the filing of their shortform application (Form 175), whichever is earlier.
(d) Definitions. The terms consortium of small businesses, control
group, existing investor, institutional investor, nonattributable
equity, preexisting entity, publicly traded corporation with [[Page 45371]]
widely dispersed voting power, qualifying investor, and small business used in this section are defined in Sec. 24.720.
36. Revise Sec. 24.711 to read as follows:
Sec. 24.711 Installment payments for licenses for frequency Block C.
Installment payments. Each eligible licensee of frequency Block C
may pay the remaining 90 percent of the net auction price for the
license in installment payments pursuant to Sec. 1.2110(f) of this chapter and under the following terms:
(a) For an eligible licensee with gross revenues exceeding $75
million (calculated in accordance with Sec. 1.2110(b) of this chapter
and Sec. 24.709(b)) in each of the two preceding years (calculated in
accordance with Sec. 1.2110(o) of this chapter), interest shall be
imposed based on the rate for tenyear U.S. Treasury obligations
applicable on the date the license is granted, plus 3.5 percent;
payments shall include both principal and interest amortized over the term of the license.
(b) For an eligible licensee with gross revenues not exceeding $75
million (calculated in accordance with Sec. 1.2110(b) of this chapter
and Sec. 24.709(b)) in each of the two preceding years, interest shall
be imposed based on the rate for tenyear U.S. Treasury obligations
applicable on the date the license is granted, plus 2.5 percent;
payments shall include interest only for the first year and payments of
interest and principal amortized over the remaining nine years of the license term.
(c) For an eligible licensee that qualifies as a small business or
as a consortium of small businesses, interest shall be imposed based on
the rate for tenyear U.S. Treasury obligations applicable on the date
the license is granted; payments shall include interest only for the
first six years and payments of interest and principal amortized over the remaining four years of the license term.
37. Revise 24.712 to read as follows:
Sec. 24.712 Bidding credits for licenses won for frequency Block C.
(a) Except with respect to licenses won in closed bidding in
auctions that begin after March 23, 1999, a winning bidder that
qualifies as a small business or a consortium of small businesses as
defined in Sec. 24.720(b)(1) or Sec. 24.720(b)(3) may use a bidding
credit of fifteen percent,
FOR FURTHER INFORMATION CONTACT
Francis Gutierrez or Robert Krinsky of the Auctions and Industry Analysis Division at (202) 4180660.