Federal Register: December 28, 2005 (Volume 70, Number 248)
DOCID: FR Doc E5-7872
FEDERAL COMMUNICATIONS COMMISSION
Federal Communications Commission
DOCUMENT ID: [Report No. AUC-05-64-B (Auction No. 64); DA 05-2987]
ACTION: Television broadcasting:
DOCUMENT ACTION: Notice.
Auction of Full Power Television Construction Permits Scheduled for March 15, 2006, Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments and Other Procedures for Auction No. 64
DATES: Auction No. 64 short-form applications are due before 6 p.m. Eastern Time (ET) on January 20, 2006. Upfront payments are due before 6 p.m. ET on February 17, 2006. Competitive bidding is scheduled to begin on March 15, 2006.
This document announces the procedures and minimum opening bids for the upcoming auction of eleven full power television station construction permits. This document is intended to familiarize prospective bidders with the procedures and minimum opening bids for Auction No. 64.
Television station construction permits auction,
This is a summary of the Auction No. 64
Procedures Public Notice released on November 23, 2005. The complete
text of the Auction No. 64 Procedures Public Notice, including
attachments and related Commission documents, is available for public
inspection and copying from 8 a.m. to 4:30 p.m. Monday through Thursday
or from 8 a.m. to 11:30 p.m. on Friday at the FCC Reference Information
Center, Portals II, 445 12th Street, SW., Room CYA257, Washington, DC
20554. The Auction No. 64 Procedures Public Notice and related
Commission documents may also be purchased from the Commission's
duplicating contractor, Best Copy and Printing, Inc. (``BCPI''),
Portals II, 445 12th Street, SW., Room CYB402, Washington, DC, 20554,
telephone 2024885300, facsimile 2024885563, or Web site: http://www.BCPIWEB.com. When ordering documents from BCPI, please provide the
appropriate FCC document number (for example, DA 052987 for the Auction No. 64 Procedures Public Notice). The Auction No. 64 Procedures Public Notice and related documents are available also on the Internet at the Commission's Web site: http://wireless.fcc.gov/auctions/64/. I. General Information
1. The Media Bureau (MB) and the Wireless Telecommunications Bureau (WTB) (collectively the Bureaus) announce the procedures and minimum opening bid amounts for the auction of 11 full power television station construction permits in Auction No. 64, scheduled to begin on March 15, 2006. On September 23, 2005, in accordance with 47 U.S.C. 309(j)(4), the Bureaus released a public notice seeking comment on reserve prices or minimum opening bid amounts and the procedures to be used in Auction No. 64. The Bureaus received comments from one commenter in response to the Auction No. 64 Comment Public Notice, 70 FR 58700 (October 7, 2005).
2. The Commission's competitive bidding rules will be used to
select among mutually exclusive applications for these construction
permits in Auction No. 64. When two or more shortform applications are accepted for filing for the same construction permit
in Auction No. 64, mutual exclusivity exists for auction purposes. 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 construction permit. Any applicant that submits a shortform application that is accepted for filing but fails to timely submit an upfront payment will retain its status as an applicant in Auction No. 64 and will remain subject to the Commission's anticollusion rules, but, having purchased no bidding eligibility, will not be eligible to bid.
ii. Television Station Construction Permits To Be Auctioned
3. Auction No. 64 will offer 11 construction permits for full power television stations. Ten of these construction permits are open to any interested party. The locations and channels of the ten open construction permits are designated as: Greeley, Colorado (DTV 45), Pueblo, Colorado (NTSC 48), Apalachicola, Florida (DTV 3), Derby, Kansas (DTV 46), Topeka, Kansas (NTSC 22+), Duluth, Minnesota (NTSC 27), Osage Beach, Missouri (NTSC 49+), Bend, Oregon (NTSC 51), Victoria, Texas (NTSC 31), and Medical Lake, Washington (DTV 51). The remaining permit, with a location and channel designated as Jackson, Mississippi (NTSC 51), is closed, and only the five listed parties that previously filed longform applications may participate in the bidding for this permit, provided such parties submit an acceptable shortform application pursuant to the Commission's rules and procedures described in the Auction No. 64 Procedures Public Notice.
4. A complete list of construction permits available in Auction No. 64 is included in Attachment A of the Auction No. 64 Procedures Public Notice. Interested parties should note that some of the stations listed in Attachment A of the Auction No. 64 Procedures Public Notice are single channel, digitalonly television stations and are indicated as DTV. These stations must be operated in digital television mode. Those stations indicated as NTSC are singlechannel stations that must be operated as either NTSC analog stations or, if they meet the Commission's interference requirements, may be operated as digital only television stations.
5. To be eligible to participate in competitive bidding for any of the construction permits identified in Attachment A of the Auction No. 64 Procedures Public Notice, each interested party, including those individuals or entities with a pending longform application listed in Attachment A of the Auction No. 64 Procedures Public Notice, must submit before the deadline of January 20, 2006, a complete and correct shortform application and otherwise comply with the deadlines and requirements outlined in the Auction No. 64 Procedures Public Notice. The Media Bureau will dismiss the pending longform application (FCC Form 301) listed in Attachment A of the Auction No. 64 Procedures Public Notice of any applicant which fails to file a shortform application (FCC Form 175) to participate in Auction No. 64 before the deadline specified in the Auction No. 64 Procedures Public Notice or which fails to submit a sufficient upfront payment before the deadline specified in the same public notice.
a. Open Construction Permits
6. Pursuant to the policies established in the Broadcast Competitive Bidding First Report and Order, 63 FR 48615 (September 11, 1998), any interested party may apply for any of the ten open construction permits listed in Attachment A of the Auction No. 64 Procedures Public Notice. Longform applications were filed previously for some of these open television station construction permits. The pending applications for these open construction permits also are listed in Attachment A of the Auction No. 64 Procedures Public Notice.
7. Any party filing for an open construction permit with a pending longform application should understand that it is likely that its application will be mutually exclusive with the previouslyfiled application. Even if there is no pending longform application for an open construction permit listed in Attachment A of the Auction No. 64 Procedures Public Notice, shortform applications specifying the same open construction permit will be considered mutually exclusive.
8. In response to the Auction No. 64 Comment Public Notice, one individual filed comments requesting that the construction permit for the new television station on Channel 31 at Victoria, Texas be removed from the auction and that there be no opportunity to file a competing application against his pending application for station TVNTS00931. The commenter expressed concern that the Commission will be allowing other parties to file competing applications for a full power television station that may cause interference to his licensed Class A low power television (LPTV) station KVHMLP, on Channel 31 at Victoria, Texas. The commenter maintained that only his application for Victoria can be granted because the issue of interference to his Class A LPTV station can only be resolved with his consent. The commenter requests that his application for Channel 31 at Victoria be withdrawn from the auction and granted outside of the auction process.
9. The commenter essentially requests that the staff review the technical qualifications of all proposals for the new Victoria television station prior to auction. In the Broadcast Competitive Bidding First Report and Order, the Commission rejected such a pre auction review of technical proposals to minimize the potential for delay and promote the deployment of new broadcasting service to the public. The Bureaus will not, therefore, consider whether other proposals for a new Victoria television station would be technically qualified prior to the auction.
10. Moreover, the Bureaus declined to remove the Victoria construction permit from this auction based on speculation that a long form application filed by a winning bidder may fail to protect from harmful interference the Class A low power television station (KVHMLP) licensed to the commenter. After the close of competitive bidding, the winning bidder for the Victoria construction permit for TVNTS00931, if any, will be required to submit a longform application and demonstrate inter alia compliance with all of the technical rules concerning operation of a fullpower television station. As part of its longform application review, the staff will determine whether the winning bidder's proposed facility would cause harmful interference to all relevant stations, including the commenter's Class A LPTV station. For this reason, the Bureaus declined to remove from Auction No. 64 the construction permit for station TVNTS00931 at Victoria, Texas. However, the Bureaus take this opportunity to remind potential bidders to undertake appropriate due diligence, including engineering studies, site inspections, and other research, prior to participating in this auction to ensure that their desired facility may be implemented. b. Closed Construction Permit
11. Participation in competitive bidding for the TVNTS01151
construction permit will be limited to those applicants identified for
the closed construction permit in Attachment A of the Auction No. 64 Procedures Public Notice, provided
such parties submit an acceptable shortform application pursuant to the Commission's rules and procedures described in the Auction No. 64 Procedures Public Notice.
12. In the Auction No. 64 Comment Public Notice, the Bureaus
required each of the nine specified auction applicants for this closed
construction permit to submit its FCC registration number (FRN) before
5 p.m. Eastern Time (ET) on November 16, 2005. Four out of the nine
specified applicants failed to submit the required FRN. Accordingly, on
November 23, 2005, the Video Division of the Media Bureau dismissed
four longform applications for a construction permit for station TV
NTS01151, on NTSC channel 51, at Jackson, Mississippi. A separate
public notice announcing that action was released December 1, 2005
(Broadcast Actions, Public Notice, Report No. 46122 (Media Bur. Dec. 1, 2005)).
B. Rules and Disclaimers
i. Relevant Authority
13. Prospective applicants must familiarize themselves thoroughly
with the Commission's general competitive bidding rules, including
recent amendments and clarifications. Broadcasters also should
familiarize themselves with the Commission's rules relating to the
television broadcast service contained in 47 CFR 73.60173.699 and
73.100173.4280. Prospective applicants also must be familiar with the
rules relating to competitive bidding proceedings contained in 47 CFR
1.20011.2112 and broadcast auctions contained in 47 CFR 73.5000
73.5009. Prospective applicants also must be thoroughly familiar with
the procedures, terms and conditions (collectively, terms) contained in
the Auction No. 64 Procedures Public Notice, the Auction No. 64 Comment
Public Notice, the Broadcast Competitive Bidding First Report and
Order, the Broadcast Competitive Bidding First Reconsideration Order, 64 FR 24523 (May 7, 1999), the New Entrant Bidding Credit
Reconsideration Order, 64 FR 44856 (August 18, 1999), and the Noncommercial Educational Second Report and Order, 68 FR 26220 (May 15, 2003).
14. 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 our public notices at any time, and will issue public notices to convey any new or supplemental information to applicants. It is the responsibility of each applicant to remain current with all Commission rules and with all public notices pertaining to this auction.
ii. Prohibition of Collusion
15. The Commission's Part 1 rules prohibit applicants competing for construction permits in the same geographic license area from communicating with each other about bids, bidding strategies, or settlements unless such applicants have identified each other on their shortform applications as parties with whom they have entered into agreements under 47 CFR 1.2105(a)(2)(viii). Thus, applicants competing for construction permits in the same geographic license area must affirmatively avoid all communications with each other that affect or, in their reasonable assessment have the potential to affect, bids or bidding strategy. In some instances, this prohibition extends to communications regarding the postauction market structure. This prohibition begins at the shortform application filing deadline and ends at the down payment deadline after the auction, which will be announced in a future public notice. This prohibition applies to all applicants regardless of whether such applicants become qualified bidders or actually bid.
16. In Auction No. 64, the rule would apply to applicants bidding for any of the same construction permits. Therefore, two applicants that apply to bid for any one common television station construction permit would be precluded from engaging in prohibited communications during the period from the shortform application deadline until the down payment deadline following the close of the auction. In addition, even if auction applicants select to bid on their shortform applications for only one common television station construction permit, they may not discuss with each other their bids or bidding strategies relating to any television station construction permit for which either applicant selected to bid on the applicant's shortform application.
17. 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 shortform application to participate in the auction, as well as all controlling interests of that entity, 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 shortform application.
18. Applicants competing for construction permits for any of the same television stations must not communicate indirectly about bids or bidding strategy. Accordingly, such applicants are encouraged not to use the same individual as an authorized bidder. A violation of the anticollusion rule could occur if an individual acts as the authorized bidder for two or more competing applicants, and conveys information concerning the substance of bids or bidding strategies between the applicants that the authorized bidder is authorized to represent in the auction. Also, if the authorized bidders are different individuals employed by the same organization (e.g., law firm or 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 applicants and their bidding agents will comply with the anticollusion rule. Similarly, the Bureaus noted that a violation of the anticollusion rule could occur in other contexts, such as, an individual serving as an officer for two or more competing applicants.
19. The Commission's anticollusion rules allow applicants to form certain agreements during the auction, provided the applicants have not applied for any of the same construction permits. However, applicants may enter into bidding agreements before filing their shortform applications, as long as they disclose the existence of the agreement(s) in their shortform application. If parties agree in principle on all material terms prior to the shortform filing deadline, those parties must be identified on the shortform 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 filing deadline, an applicant would not include the names of those parties on its application, and may not continue negotiations, discussions or communications with other applicants for construction permits for the same designated market. Applicants that are winning bidders will be required pursuant to 47 CFR 1.2107(d) to disclose in their longform applications the specific terms, conditions, and parties involved in all bidding consortia, joint ventures, partnerships, and other arrangements entered into relating to the competitive bidding process.
20. By electronically submitting its shortform application, each
applicant certifies its compliance with 47 CFR 1.2105(c) and 73.5002.
However, the Bureaus caution that merely filing a certifying statement as part of an
application will not outweigh specific evidence that collusive behavior has occurred, nor will it preclude the initiation of an investigation when warranted.
21. In addition, 47 CFR 1.65 requires an applicant to maintain the accuracy and completeness of information furnished in its pending application and to notify the Commission within 30 days of any substantial change that may be of decisional significance to that application. Thus, 47 CFR 1.65 requires an auction applicant to notify the Commission of any violation of the anticollusion rules upon learning of such violation. Applicants are therefore required by 47 CFR 1.65 to make such notification to the Commission immediately upon discovery. In addition, 47 CFR 1.2105(c)(6) requires that any applicant that makes or receives a communication prohibited by 47 CFR 1.2105(c) must report such communication to the Commission in writing immediately, and in no case later than five business days after the communication occurs.
22. Any applicant found to have violated the anticollusion rule may be subject to sanctions. Applicants are reminded that they are subject to the antitrust laws, which are designed to prevent anticompetitive behavior in the marketplace. Compliance with the disclosure requirements of the Commission's anticollusion rule will not necessarily insulate a party from enforcement of the antitrust laws. 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.
23. A summary listing of documents issued by the Commission and the Bureaus addressing the application of the anticollusion rule may be found in Attachment F of the Auction No. 64 Procedures Public Notice and these documents are available on the Commission's auction anti collusion Web page.
iii. Due Diligence
24. Potential bidders are reminded that they are solely responsible for investigating and evaluating all technical and market place factors that may have a bearing on the value of the broadcast facilities in this auction. 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 construction permittee in the 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. Applicants should perform their individual due diligence before proceeding as they would with any new business venture.
25. Potential bidders are strongly encouraged to conduct their own research prior to the beginning of bidding in Auction No. 64 in order to determine the existence of any pending administrative or judicial proceedings that might affect their decision regarding participation in bidding in the auction. Participants in Auction No. 64 are strongly encouraged to continue such research throughout the auction. In addition, potential bidders should perform technical analyses sufficient to assure themselves that, should they prevail in competitive bidding for a specific construction permit, they will be able to build and operate facilities that will comply fully with the Commission's technical and legal requirements.
26. Potential bidders should also be aware that certain pending and future applications (including those for modification), petitions for rulemaking, requests for special temporary authority, waiver requests, petitions to deny, petitions for reconsideration, informal oppositions, and applications for review before the Commission may relate to particular applicants or incumbent construction permittees or incumbent licensees or the construction permits available in Auction No. 64. In addition, pending and future judicial proceedings may relate to particular applicants, incumbent construction permittees, or incumbent licensees, or the construction permits available in Auction No. 64. Prospective bidders are responsible for assessing the likelihood of the various possible outcomes, and considering their potential impact on construction permits available in this auction.
27. In particular, potential bidders are strongly encouraged to review all underlying Commission orders, such as the specific report and order amending the television and digital television Tables of Allotments and allotting the analog or digital television channel(s) on which they plan to bid. Bidders are also responsible for reviewing all pending rulemaking petitions and open proceedings that might affect the construction permit(s) on which they plan to bid.
28. Prospective bidders should perform due diligence to identify and consider all proceedings that may affect the construction permits being auctioned. The Bureaus note that resolution of such matters could have an impact on the availability of spectrum for construction permits included in Auction No. 64. In addition, although the Commission may continue to act on various pending applications, informal objections, petitions, and other requests for Commission relief, some of these matters may not be resolved by the time of the beginning of bidding in this auction.
29. 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 No. 64. Potential applicants are strongly encouraged to physically inspect any sites located in, or near, the service area for which they plan to bid, and also to familiarize themselves with the environmental assessment obligations as described in 47 CFR 1.13051.1319.
30. Potential bidders for any new television facility in Auction No. 64 should note that full service television stations are in the process of converting from analog to digital operation and that stations may have pending applications to construct and operate digital television facilities, construction permits and/or licenses for such digital facilities. Bidders should investigate the impact such applications, permits and licenses may have on their ability to operate the facilities proposed in this auction.
31. In response to the enactment of the Community Broadcasters Protection Act of 1999, in the Class A Report and Order, 65 FR 29985 (May 10, 2000), the Commission adopted rules to establish a new Class A television service, including rules to provide interference protection for eligible Class A television stations from new full power television stations. As required by the rulemaking order, a winning bidder in Auction No. 64, upon submission of its longform application, will have to provide interference protection to qualified Class A television stations. Therefore, potential bidders are encouraged to perform engineering studies to determine the existence of Class A television stations and their effect on the ability to operate any full power television station proposed in this auction.
32. Potential bidders may research the Media Bureau's Consolidated Data Base System (CDBS) on the Internet in order
to determine which channels are licensed already to incumbent licensees or previously authorized to construction permittees, including information about the identity and location of Class A television stations. The Commission makes no representations or guarantees regarding the accuracy or completeness of information in its databases or any third party databases. To the extent the Commission's databases may not include all information deemed necessary or desirable by a bidder, bidders may 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 the database.
iv. Bidder Alerts
33. As is the case with many business investment opportunities, some unscrupulous entrepreneurs may attempt to use Auction No. 64 to deceive and defraud unsuspecting investors. Information about deceptive telemarketing investment schemes is available from the Federal Trade Commission (FTC) at (202) 3262222 and from the Securities and Exchange Commission (SEC) at (202) 9427040. Complaints about specific deceptive telemarketing investment schemes should be directed to the FTC, the SEC, or the National Fraud Information Center at 8008767060. v. National Environmental Policy Act Requirements
34. Construction permittees or licensees must comply with the
Commission's rules regarding implementation of the National
Environmental Policy Act (NEPA). The construction of a broadcast
facility is a Federal action and the construction permittee must comply
with the Commission's NEPA rules for each such facility. The
Commission's NEPA rules require, among other things, that the
construction permittee consult with expert agencies having NEPA
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). The construction
permittee must prepare environmental assessments for broadcast
facilities 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. The
construction permittee also must prepare environmental assessments for
facilities that include high intensity white lights in residential neighborhoods or excessive radio frequency emission.
C. Auction Specifics
i. Auction Date
35. Bidding in this auction will begin on Wednesday, March 15,
2006. The initial schedule for bidding will be announced by public
notice at least one week before the start of the auction. Unless
otherwise announced, bidding on all construction permits will be
conducted on each business day until bidding has stopped on all construction permits.
ii. Auction Title
36. Auction No. 64Full Power Television.
iii. Bidding Methodology
37. The bidding methodology for Auction No. 64 will be simultaneous
multiple round bidding. The Commission will conduct this auction over
the Internet using the FCC's Integrated Spectrum Auction system (ISAS
or FCC Auction System), and telephonic bidding will be available as
well. Qualified bidders are permitted to bid electronically via the Internet or by telephone.
iv. PreAuction Dates and Deadlines
Auction SeminarJanuary 11, 2006
FCC Form 175 Filing Window OpensJanuary 11, 2006; 12 p.m. ET FCC Form 175 Filing Window DeadlineJanuary 20, 2006; 6 p.m. ET Upfront Payments (via wire transfer)February 17, 2006; 6 p.m. ET Mock AuctionMarch 13, 2006
Auction BeginsMarch 15, 2006
v. Requirements for Participation
38. Those wishing to participate in the auction must submit a
shortform application (FCC Form 175) electronically prior to 6 p.m.
ET, January 20, 2006, following the electronic filing procedures set
forth in Attachment C of the Auction No. 64 Procedures Public Notice;
submit a sufficient upfront payment and an FCC Remittance Advice Form
(FCC Form 159) before 6:00 p.m. ET, February 17, 2006; and comply with
all provisions outlined in this public notice and applicable Commission rules.
vi. General Contact Information
GENERAL AUCTION INFORMATION
General Auction Questions
FCC Auctions Hotline, (888) 2255322, option two; or (717) 3382888
Hours of service: 8 a.m.5:30 p.m. ET, Monday through Friday AUCTION LEGAL INFORMATION
Auction Rules, Policies, Regulations
Auctions and Spectrum Access Division
Rules, Policies, Regulations
Licensing Issues, Engineering Issues, Due Diligence, Incumbency Issues
FCC Auction System
FCC Auctions Technical Support Hotline
(877) 4803201, option nine; or (202) 4141250, (202) 4141255 (TTY)
Hours of service: 8 a.m.6 p.m. ET, Monday through Friday PAYMENT INFORMATION
FCC Auctions Accounting Branch
(202) 4180578, (202) 4182843 (Fax)
AUCTION BIDDER LINE
Will be furnished only to qualified bidders
FCC COPY CONTRACTOR
Additional Copies of
Best Copy and Printing, Inc
445 12th Street, SW., Room CYB402, Washington, DC 20554, (800)
3783160, http://www.bcpiweb.comPRESS INFORMATION
Chelsea Fallon (202) 4187991
(800) 4183676 (outside Washington, DC), (202) 4183676 (in the Washington area), http://www.fcc.gov/formpage.htmlACCESSIBLE FORMATS
Braille, large print, electronic files, or audio format for people with disabilities
Consumer and Governmental Affairs Bureau
(202) 4180530 or (202) 4180432 (TTY), email@example.com FCC INTERNET SITES
http://wireless.fcc.gov/auctions http://www.fcc.gov/mb II. ShortForm Application (FCC Form 175) Requirements
39. Entities seeking construction permits available in Auction No. 64
must file electronically via the FCC Auction System an application to participate in an FCC auction, referred to as a shortform application or FCC Form 175, before 6 p.m. ET on January 20, 2006, following the procedures prescribed in Attachment C to the Auction No. 64 Procedures Public Notice. For Auction No. 64, if an applicant claims eligibility for a bidding credit, the information provided in its FCC Form 175 will be used in determining whether the applicant is eligible for the claimed bidding credit. Applicants bear full responsibility for submission of accurate, complete and timely shortform 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 provided in Attachment C of the Auction No. 64 Procedures Public Notice and should consult the Commission's rules to ensure that, in addition to the materials described below, all the information that is required under the Commission's rules is included with their shortform applications.
40. An entity may not submit more than one shortform application in a single auction. In the event that a party submits multiple short form applications, such additional applications will be dismissed.
41. Applicants also should note that submission of a shortform application constitutes a representation by the certifying official that he or she is an authorized representative of the applicant, has read the form's instructions and certifications, and that the contents of the application, its certifications, and any attachments are true and correct. 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.
A. New Entrant Bidding Credit
42. The Commission adopted a tiered New Entrant Bidding Credit for broadcast auction applicants with no, or very few, other media interests. The determination of an auction applicant's eligibility for the New Entrant Bidding Credit considers the interests of the applicant, and of any individuals or entities with an attributable interest in the applicant, in other media of mass communications. The applicant's attributable interests shall be determined as of the short form application filing deadline, January 20, 2006. Thus, the applicant's maximum new entrant bidding credit eligibility will be determined as of the shortform application filing deadline. Any 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 shortform filing deadline, January 20, 2006. An applicant cannot qualify for a bidding credit, nor upgrade a previously claimed bidding credit, based upon ownership or positional changes occurring after the shortform application filing deadline. Prospective applicants are reminded, moreover, that events occurring after the shortform 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.
43. Under traditional broadcast attribution rules, those entities or individuals with an attributable interest in an applicant include, all officers and directors of a corporate applicant; any owner of 5 percent or more of the voting stock of a corporate applicant; all partners and limited partners of a partnership bidder, unless the limited partners are sufficiently insulated; and all members of a limited liability company, unless sufficiently insulated.
44. In cases where an applicant's spouse or close family member holds other media interests, such interests are not automatically attributable to the applicant. 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.
45. Applicants also are 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 auction 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.
46. 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 winning bidder's other mass media interests in determining its eligibility for a New Entrant Bidding Credit. A medium of mass communications is defined in 47 CFR 73.5008(b). Full service noncommercial educational stations, on both reserved and nonreserved channels, are included among media of mass communications as defined in 47 CFR 73.5008(b). B. Application Requirements
47. In addition to the ownership information required pursuant to 47 CFR 1.2105 and 1.2112, applicants are required to establish on their shortform applications that they satisfy the eligibility requirements to qualify for a New Entrant Bidding Credit. In those cases where a New Entrant Bidding Credit is being sought, a certification under penalty of perjury must be provided in completing the applicant's shortform 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 have any attributable interests in more than three media of mass communications, and must identify and describe such media of mass communications. i. Bidding Credits
48. 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 bidderentity and its attributable
interestholders. 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 proposed broadcast station, 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.
49. 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.
ii. Unjust Enrichment
50. 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.
C. Permit Selection
51. There is no opportunity to change construction permit selection after the shortform filing deadline. It is critically important that each applicant confirms its construction permit selection because the FCC Auction System will not accept bids on construction permits that an applicant has not selected on its shortform application. In addition, prospective applicants should note that participation in competitive bidding for a construction permit for station TVNTS01151 (closed permit) will be limited to those applicants identified under the closed construction permit in Attachment A of the Auction No. 64 Procedures Public Notice, provided such parties submit an acceptable shortform application pursuant to the Commission's rules and procedures described in the Auction No. 64 Procedures Public Notice.
D. Consortia and Joint Bidding Arrangements
52. Applicants will be required to indicate on their applications whether they have entered into any explicit or implicit agreements, arrangements or understandings of any kind with any parties, other than those identified, regarding the amount of their bids, bidding strategies, or the particular construction permits on which they will or will not bid. Applicants also will be required to identify on their shortform applications any parties with whom they have entered into any consortium arrangements, joint ventures, partnerships or other agreements or understandings that relate in any way to the construction permits being auctioned, including any agreements relating to post auction market structure. If an applicant has had discussions, but has not reached a joint bidding agreement by the shortform application filing deadline, it would not include the names of parties to the discussions on its applications and may not continue such discussions with applicants for the same construction permit after the deadline.
53. A party holding a noncontrolling, attributable interest in one applicant will be permitted to acquire an ownership interest in, form a consortium with, or enter into a joint bidding arrangement with other applicants for construction permits in the same market provided that (i) the attributable interest holder certifies that it has not and will not communicate with any party concerning the bids or bidding strategies of more than one of the applicants in which it holds an attributable interest, or with which it has formed a consortium or entered into a joint bidding arrangement; and (ii) the arrangements do not result in a change in control of any of the applicants. While the anticollusion rules do not prohibit nonauction related business negotiations among auction applicants, applicants are reminded that 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. Ownership Disclosure Requirements
54. The Commission specified in the Broadcast Competitive Bidding First Report and Order that, for purposes of determining eligibility to participate in a broadcast auction, the uniform Part 1 ownership disclosure standards would apply. Therefore, 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 shortform application, applicants will be required to fully disclose information on the real party or partiesininterest and ownership structure of the bidding entity. The ownership disclosure standards for the shortform application are prescribed in 47 CFR 1.2105 and 1.2112. Each applicant is responsible for information submitted in its shortform application being complete and accurate.
55. To simplify filling out its shortform application, an applicant's most current ownership information on file with the Commission in an electronic format compatible with the shortform application, such as information submitted in an online FCC Form 602 in connection with wireless services or in a shortform application filed for a previous auction, will be entered automatically into the applicant's shortform application for Auction No. 64. An applicant should review carefully any information automatically entered to confirm that it is complete and accurate as of the deadline for filing the shortform application. Applicants can update any information that needs to be changed directly in the shortform application.
F. Provisions Regarding Former and Current Defaulters
56. Each applicant in Auction No. 64 must state under penalty of perjury on its shortform application whether or not the applicant, its affiliates, its controlling interests, or any affiliate 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. In addition, each applicant must certify under penalty of perjury on its shortform application that the applicant, its affiliates, its controlling interests, and the affiliates of its controlling interests, as of the filing deadline for applications to participate in a specific auction, are not in default on any payment for a Commission construction permit or license (including a down payment) and that they are not delinquent on any non tax debt owed to any Federal agency. Affiliates and controlling interests are defined in 47 CFR 1.2110. Prospective applicants are reminded that submission of a false certification to the Commission is a serious matter that may result in severe penalties, including monetary forfeitures, license revocations, exclusion from participation in future auctions, and/or criminal prosecution.
57. Former defaultersi.e., applicants, including any of its
affiliates, any of its controlling interests, or any of the affiliates
of its controlling interests, that in the past have defaulted on any
Commission construction permit or license or been delinquent on any
nontax debt owed to any Federal agency, but that have since remedied all such defaults and cured all of their
outstanding nontax delinquenciesare eligible to bid in Auction No. 64, provided that they are otherwise qualified. However, former defaulters are required pursuant to 47 CFR 1.2106(a) to pay upfront payments that are fifty percent more than the normal upfront payment amounts.
58. In contrast, an applicant is not eligible to participate in competitive bidding in Auction No. 64 if the applicant, 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 nontax debt owed to any Federal agency as of the filing deadline for applications to participate in this auction.
59. Applicants are encouraged to review the Wireless Telecommunications Bureau's previous guidance on default and delinquency disclosure requirements in the context of the auction 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 sanctions 47 CFR 1.2105(a) and 1.2106(a) impose with respect to competitive bidding are limited to circumstances in which the relevant party has not complied with a final Commission payment deadline.
60. 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 the Commission's obligations under the Debt Collection Improvement Act of 1996, which governs the collection of claims owed to the United States. Under the red light rule, the Commission will not process applications and other requests for benefits filed by parties that have outstanding debts owed to the Commission. In the same rulemaking order, the Commission explicitly declared, however, that the Commission's 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 the Commission's 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. Applicants are reminded, however, that the Commission's Red Light Display System, which provides information regarding debts 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 may ultimately prevent the processing of long form applications by auction winners, an auction applicant's red light status is not necessarily determinative of its eligibility to participate in this auction or to its upfront payment obligation.
61. Prospective applicants in Auction No. 64 should note that any longform applications filed after the close of competitive 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. Other Information
62. Applicants owned by minorities or women, as defined in 47 CFR 1.2110(c)(2), may identify themselves in filling out their shortform applications regarding this status. 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. Minor Modifications to ShortForm Applications (FCC Forms 175)
63. Following the deadline for filing shortform applications on January 20, 2006, applicants in Auction No. 64 are permitted to make only minor changes to their applications. As explained in 47 CFR 1.2105, applicants are not permitted to make major modifications to their applications (e.g., change their construction permit selections, change control of the applicant, increase a previously claimed bidding credit, or change their selfidentification as a noncommercial educational entity). Permissible minor changes include, for example, 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.
64. 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) by an officer, director, or duly authorized employee, if the applicant is a corporation, (4) by a member who is an officer, if the applicant is an unincorporated association, (5) by the trustee if the applicant is an amateur radio service club, or (6) a duly elected or appointed official who is authorized to do so under the laws of the applicable jurisdiction, if the applicant is a governmental entity.
65. An applicant must make permissible minor changes to its short form application, as defined by 47 CFR 1.2105(b), online. Applicants must click on the SUBMIT button in the FCC Auction System for the changes to be submitted and considered by the Commission. After the revised application has been submitted, a confirmation page will be displayed that states the submission time and date, along with a unique file number.
66. In addition, applicants must submit a letter, briefly
summarizing the changes by electronic mail to the attention of Margaret
Wiener, Chief, Auctions and Spectrum Access Division, at the following
address: firstname.lastname@example.org. The electronic mail summarizing the changes
must include a subject or caption referring to Auction No. 64 and the name of the applicant.
I. Maintaining the Accuracy of ShortForm Application Information
67. Each applicant must maintain the accuracy and completeness of information furnished in its pending application and notify the Commission within 30 days of any substantial change that may be of decisional significance to that application as specified in 47 CFR 1.65. Changes that cause a loss of or reduction in eligibility for a new entrant bidding credit must be reported immediately. For example, if ownership changes result in the attribution of new interest holders that affect the applicant's qualifications for a new entrant bidding credit, such information must be clearly stated in the applicant's notification. If an amendment reporting substantial 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 shortform application.
68. Applicants must report 47 CFR 1.65 modifications to their FCC
Form 175 by electronic mail and submit a letter briefly summarizing the
changes to the attention of Margaret Wiener, Chief, Auctions and
Spectrum Access Division, at the following address: email@example.com.
The electronic mail summarizing the changes must include a subject or
caption referring to Auction No. 64 and the name of the applicant. [[Page 76844]]
III. PreAuction Procedures
A. Auction SeminarJanuary 11, 2006
69. On Wednesday, January 11, 2006, the FCC will sponsor a seminar for parties interested in participating in Auction No. 64 at the Federal Communications Commission headquarters, located at 445 12th Street, SW., Washington, DC. The seminar will provide attendees with information about preauction procedures, completing the FCC Form 175, auction conduct, the FCC Auction System, auction rules, and the full power television broadcast service rules. The seminar will also provide an opportunity for prospective bidders to ask questions of FCC staff.
70. To register, complete the registration form, Attachment B of the Auction No. 64 Procedures Public Notice, and submit it by Monday, January 9, 2006. Registrations are accepted on a firstcome, first served basis. The seminar is free of charge.
71. For individuals who are unable to attend, an Audio/Video of
this seminar will be available via Webcast from the FCC's Auction 64
Web page at http://wireless.fcc.gov/auctions/64/. Select the Auction Seminar link.
B. ShortForm Application (FCC Form 175)Due Before 6 p.m. ET on January 20, 2006
72. In order to be eligible to bid in this auction, applicants must first submit an FCC Form 175 application electronically via the FCC Auction System. This application must be submitted electronically and received at the Commission prior to 6 p.m. ET on January 20, 2006. Late applications will not be accepted. There is no application fee required when filing FCC Form 175. However, to be eligible to bid, an applicant must submit an upfront payment.
73. Applications generally may be filed at any time beginning at noon ET on January 11, 2006, until 6 p.m. ET on January 20, 2006. Applicants are strongly encouraged to file early and are responsible for allowing adequate time for filing their applications. Applicants may update or amend their electronic applications multiple times until the filing deadline on January 20, 2006.
74. Applicants must always click on the SUBMIT button on the Certify and Submit screen of the electronic form to successfully submit their FCC Forms 175 or modifications. Any form that is not submitted will not be reviewed by the FCC. Information about accessing, completing, and viewing the FCC Form 175 is included in Attachment C of the Auction No. 64 Procedures Public Notice.
C. Application Processing and Minor Corrections
75. After the deadline for filing the FCC Form 175 applications has passed, the FCC will process all timely submitted applications to determine which are acceptable for filing, and subsequently will issue a public notice identifying: (1) Those applications accepted for filing; (2) those applications rejected; and (3) those applications which have minor defects that may be corrected, and the deadline for resubmitting such corrected applications.
76. Nonmutually 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 the subsequent public notice. All mutually exclusive applications will be considered under the relevant procedures for conflict resolution. Mutually exclusive commercial applications will proceed to auction. However, any applications for noncommercial educational full power television stations on nonreserved spectrum that are mutually exclusive with any applications specifying commercial facilities will be returned as unacceptable for filing pursuant to 47 CFR 73.5002(b).
77. As described more fully in the Commission's rules, after the shortform filing deadline on January 20, 2006, applicants may make only minor corrections to their FCC Form 175 applications. Applicants will not be permitted to make major modifications to their applications (e.g., change their construction permit selections, change control of the applicant, increase a previously claimed bidding credit, or change their selfidentification as noncommercial educational (NCE)). D. Upfront PaymentsDue February 17, 2006
78. In order to be eligible to bid in the auction, applicants must submit an upfront payment accompanied by an FCC Remittance Advice Form (FCC Form 159). After completing the FCC Form 175, filers will have access to an electronic version of the FCC Form 159 that can be printed and sent by facsimile to Mellon Bank in Pittsburgh, PA. All upfront payments must be received in the proper account at Mellon Bank before 6 p.m. ET on February 17, 2006.
i. Making Auction Payments by Wire Transfer
79. Wire transfer payments must be received before 6 p.m. ET on February 17, 2006. To avoid untimely payments, applicants should discuss arrangements (including bank closing schedules) with their banker 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. The specific information needed to make the required wire transfer payment is provided in the Auction No. 64 Procedures Public Notice.
80. At least one hour before placing the order for the wire transfer (but on the same business day), applicants must send by facsimile a completed FCC Form 159 (Revised 2/03) to Mellon Bank at (412) 2096045. On the cover sheet of the facsimile, write ``Wire TransferAuction Payment for Auction No. 64.'' In order to meet the Commission's upfront payment deadline, an applicant's payment must be credited to the Commission's account before the deadline. Applicants are responsible for obtaining confirmation from their financial institution that Mellon Bank has timely received their upfront payment and deposited it in the proper account.
81. All payments must be made in U.S. dollars and by wire transfer. Upfront payments for Auction No. 64 go to a lockbox number different from the lockboxes used in previous FCC auctions, and different from the lockbox number to be used for postauction payments. Failure to deliver the upfront payment by the specified deadline on February 17, 2006, will result in dismissal of the application and disqualification from participation in the auction.
ii. FCC Form 159
82. A completed FCC Remittance Advice Form (FCC Form 159) must be
sent by facsimile to Mellon Bank to accompany each upfront payment.
Proper completion of the FCC Form 159 is critical to ensuring correct
crediting of upfront payments. Detailed instructions for completion of
FCC Form 159 are included in Attachment D of the Auction No. 64
Procedures Public Notice. An electronic prefilled version of the FCC
Form 159 is available after submitting the FCC Form 175. Payors using a
prefilled 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 must be filed with Mellon Bank via facsimile. iii. Amount of Upfront Payment
83. In the Auction No. 64 Comment Public Notice, the Bureaus proposed that 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 construction permit, an otherwise qualified bidder that applied for that construction permit on its FCC Form 175, 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 for which the applicant has applied on FCC Form 175, but rather to cover the number of bidding units that are associated with construction permits on which the bidder wishes to place bids and hold provisionally winning bids at any given time. (Provisionally winning bids are bids that would become winning bids if the auction were to close after the given round.)
84. In the Auction No. 64 Comment Public Notice, the Bureaus proposed upfront payments for each construction permit. The specific upfront payment and bidding units for each construction permit are specified in Attachment A of the Auction No. 64 Procedures Public Notice.
85. 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 or hold provisionally winning bids) 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 upfront payments 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. Information about an upfront payment calculation, including an example, is provided in the Auction No. 64 Procedures Public Notice.
86. In the Fifth Report and Order, 65 FR 52323 (August 29, 2000), the Commission specified that an applicant be required to make upfront payments 50 percent greater than the amount set for each construction permit or license if the applicant ever has been in default on any Commission construction permit or license or ever has been delinquent on any nontax debt owed to any Federal agency. For purposes of this calculation, the applicant includes the applicant itself, its affiliates, its controlling interests, and affiliates of its controlling interests, as defined by 47 CFR 1.2110.
87. Pursuant to 47 CFR 1.2106(a), former defaulters should calculate their upfront payment for all construction permits by multiplying the number of bidding units on which they wish 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. If a former defaulter fails to submit a sufficient upfront payment to establish eligibility to bid on at least one of the construction permits for which the applicant has applied on its FCC Form 175, the applicant will not be eligible to participate in the auction. iv. Applicant's Wire Transfer Information for Purposes of Refunds of Upfront Payments
88. The Commission will use wire transfers for all Auction No. 64 refunds. To ensure that refunds of upfront payments are processed in an expeditiou
FOR FURTHER INFORMATION CONTACT
Auction and Spectrum Access Division, Wireless Telecommunications Bureau: for legal questions: Lynne Milne at (202) 4180660; for general auction questions: Debbie Smith or Lisa Stover at (717) 3382888. Video Division, Media Bureau: for service rule questions: Shaun Maher at (202) 4182324 or Shaleim Henry at (202) 4181600.