[Federal Register Volume 63, Number 10 (Thursday, January 15, 1998)]
[Rules and Regulations]
[Pages 2315-2350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-823]
[[Page 2315]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 21, 24, 26, 27, 90 and 95
[WT Docket No. 97-82, ET Docket No. 94-32; FCC 97-413]
Competitive Bidding Proceeding
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this Third Report and Order, the Commission adopts uniform
competitive bidding rules for all future auctions. The Commission
believes that these rule changes will simplify and streamline its
regulations in order to increase the overall efficiency of the
competitive bidding process. These rule changes are necessary to
further the Commission's goals of simplifying and streamlining its
regulations, and to develop uniform auction rules and procedures for
all future auctions. The intended effect of this action is to adopt
uniform final rules and procedures applicable to the Commission's
spectrum auction program.
EFFECTIVE DATE: March 16, 1998.
FOR FURTHER INFORMATION CONTACT: Josh Roland or Mark Bollinger,
Auctions and Industry Analysis Division, Wireless Telecommunications
Bureau, at (202) 418-0660.
SUPPLEMENTARY INFORMATION: This is a summary of the Third Report and
Order in WT Docket No. 97-82, ET Docket No. 94-32, adopted on December
18, 1997 and released on December 31, 1997. The complete Third Report
and Order is available for inspection and copying during normal
business hours in the FCC Reference Center, Room 239, 1919 M Street,
NW., Washington, DC 20554. The complete text may be purchased from the
Commission's copy contractor, International Transcription Service,
Inc., 1231 20th Street, N.W., Washington, D.C. 20036, (202) 857-3800.
The complete Third Report and Order also is available on the
Commission's Internet home page (http://www.fcc.gov).
SUMMARY OF ACTION:
I. Background
1. On December 18, 1997, the Federal Communications Commission
(Commission) adopted a Third Report and Order making substantive
amendments and modifications to its general competitive bidding rules
for all auctionable services. These changes to the Commission's general
competitive bidding rules are intended to streamline the Commission's
regulations and eliminate unnecessary rules wherever possible, increase
the efficiency of the competitive bidding process, and provide more
specific guidance to auction participants. The changes also advance the
Commission's auction program by reducing the burden on the Commission
and the public of conducting service-by-service auction rule makings.
In the Competitive Bidding Second Report and Order in PP Docket No. 93-
253, the Commission stated that we would ``issue further Reports and
Orders * * * to adopt auction rules for each auctionable service or
class of service,'' and we identified criteria that would govern our
choice of service-specific auction rules and procedures, which may be
found in subpart Q of part 1 of our rules. Implementation of Section
309(j) of the Communications Act--Competitive Bidding, PP Docket No.
93-253, Second Report and Order, 59 FR 22980 (May 4, 1994)
(``Competitive Bidding Second Report and Order''), on recon., Second
Memorandum Opinion and Order, 59 FR 44272 (August 26, 1994)
(``Competitive Bidding Second Memorandum Opinion and Order''). These
rule changes result from the Commission's proposals in Amendment of
Part 1 of the Commission's Rules--Competitive Bidding Proceeding,
Order, Memorandum Opinion and Order, and Notice of Proposed Rule
Making, WT Docket No. 97-82, 62 FR 13570 (March 21, 1997) (``Notice'').
2. The Commission also released a Second Further Notice of Proposed
Rule Making in this Docket, in which it sought comment on additional
changes to its general competitive bidding rules. The Second Further
Notice of Proposed Rule Making was published in the Federal Register on
January 7, 1998. See Amendment of Part 1 of the Commission's Rules--
Competitive Bidding Procedures, Allocation of Spectrum Below 5 GHz
Transferred from Federal Government Use, 4660-4685 MHz, Second Further
Notice of Proposed Rule Making, WT Docket No. 97-82, ET Docket No. 94-
32 (rel. January 7, 1998) (``Second Further Notice of Proposed Rule
Making'').
II. Applicability of General Competitive Bidding Rules
3. With some exceptions, the Commission adopts its proposal in the
Notice to apply the general competitive bidding rules adopted herein to
all future auctions, regardless of whether service-specific auction
rules have previously been adopted. The Part 1 rules will apply to all
auctionable services, unless the Commission determines that with regard
to particular matters the adoption of service-specific rules is
warranted. As the Commission indicated in the Notice, the Commission
has gained significant experience in the course of the 15 auctions
conducted to date. In particular, the Commission has found that much of
the auction process can be standardized and that adopting service-
specific rules for many aspects of the competitive bidding process is
both unnecessary and confusing. The Commission also finds that
conducting separate rule makings for each individual service often
slows the delivery of service to the public because it results in
regulatory delays before the licensing process begins. The majority of
commenters addressing this issue agree, emphasizing that the adoption
of uniform auction procedures will (1) shorten the rule making process
for future auctions by narrowing the issues on which the Commission
must seek comment in service-specific rule makings; (2) decrease
uncertainty for auction participants; (3) benefit small businesses
because uniform rules are more easily understood and complied with,
particularly by those with limited resources and those that participate
in different auctions; and (4) enable the Commission to develop a
consistent body of law and precedent governing the auction process.
4. The Balanced Budget Act of 1997, Pub. L. 105-33, 111 Stat. 251
(1997), to be codified in relevant part at 47 U.S.C. 309(j)(2)(E) and
309(j)(4)(F) (``Balanced Budget Act''), expands the Commission's
auction authority. Section 309(j)(2) formerly stated that mutually
exclusive applications for initial licenses or construction permits
were auctionable if the principal use of the spectrum was for
subscription-based services and competitive bidding would promote the
expressed objectives. As amended, Section 309(j)(2) provides that, in
cases of mutually exclusive applications, all spectrum is auctionable
except licenses or construction permits for (1) public safety services;
(2) digital television service given to existing broadcasters to
replace their analog license; and (3) non-commercial educational or
public broadcast stations. In addition, the Balanced Budget Act
authorizes the Commission to assign pending broadcast license
applications filed before July 1, 1997 by means of competitive bidding
pursuant to Section 309(j). Because these legislative changes
significantly increase the number of services that will be licensed by
competitive bidding, we believe that adopting uniform competitive
bidding
[[Page 2316]]
rules for all auctionable services is even more necessary.
5. With limited exceptions, the rules the Commission adopts today
will not apply to the initial auction of licenses in the paging, 220
MHz, and Local Multipoint Distribution (``LMDS'') services. The
Commission previously adopted service-specific auction rules for the
auction of these services, and believes that this decision is in the
best interest of prospective applicants for these auctions, who may
have relied upon the service-specific rules previously adopted by the
Commission in formulating business plans and making early efforts to
obtain financing. As discussed below, however, the Commission retains
the discretion to use the revised general competitive bidding
procedures adopted in this proceeding for any reauction of licenses in
these services. The Commission also notes that while service-specific
rules exist for the auction of the 220 MHz service, many of these rules
are similar, or refer to the Part 1 rules. To apply the existing rules
for the most part is also strongly supported by those commenters
addressing the issue. For example, AMTA states that the 220 MHz
industry has encountered extraordinary delays in achieving regulatory
certainty, and that amending or altering the auction rules for this
service would create further uncertainty. Consistent with the
Commission's discussion below, the Commission's decision regarding the
establishment of minimum opening bids will apply to the initial auction
of licenses in the paging and 220 MHz services. In addition, the
Commission notes that several petitions for reconsideration are pending
in these proceedings. In resolving these petitions, the Commission will
address installment payment financing for licenses in these services in
a manner consistent with our decision herein to temporarily suspend the
use of installment payments.
6. Many of the commenters who support the Commission's proposal to
adopt general competitive bidding procedures for all auctionable
services argue that the Commission should, in its discretion, adopt or
retain service-specific rules in particular instances. Airadigm argues
that the Commission should use existing service-specific rules where it
would be unfair to allow one group of licensees in the same service to
benefit or be disadvantaged by operating under a different set of rules
than its competitors in the same service (e.g., in the case of a
reauction of licenses following bidder default). Similarly, NextWave
contends that the adoption of service-specific rules may be appropriate
in some circumstances. In a related argument, some commenters believe
that, in certain instances, the rules adopted in this proceeding should
not be applied retroactively to supersede previously adopted service-
specific rules. For example, AirTouch and WWC suggest that when
service-specific rules have been adopted after industry participation
and based upon particular characteristics of a specific industry or
spectrum to be auctioned, those service-specific rules should govern.
7. With regard to the auction of licenses to provide paging
services, AirTouch opposes the Commission's proposal to apply general
auction rules to all future auctions, regardless of whether service
specific rules have been adopted. AirTouch argues in particular that
the Commission should not adopt a general stopping rule for the paging
auction which would be contrary to the comments received in that
proceeding and the stopping rule that the Commission ultimately
adopted. As discussed above, the Commission will use previously-
adopted, service-specific rules for the paging auction.
8. The rule changes the Commission adopts today streamline and
simplify its general competitive bidding procedures. The majority of
the rules the Commission adopts today address aspects of the
Commission's spectrum auction program that affect future auction
applicants only. These rules include application procedures (e.g.,
electronic filing, short-form application amendments, ownership
disclosure requirements), upfront and down payment issues, issues
relating to competitive bidding design, procedure and timing (e.g.,
alternate bidding methodologies, minimum opening bids, and bid
withdrawal), and rules prohibiting collusion during the auction.
However, some of the provisions the Commission adopts today address
aspects of its rules that govern current licensees as well.
Specifically, these minor rule changes affect certain license-related
payment terms (e.g., installment payments, grace periods, and unjust
enrichment).
9. Two commenters, AICC and AAA, argue that the general competitive
bidding procedures adopted in this proceeding would be wholly
inappropriate for auctions of shared frequencies governed by Part 90 of
the Commission's rules. In support of this position, these commenters
argue that: (1) None of the Commission's auctions have involved shared
frequencies; (2) any auction of Part 90 shared spectrum would involve
participants ranging in size from very large corporations to very small
businesses and individual users, which would require a significant
adjustment in the Commission's traditional auction rules; (3) industry
participation would be crucial in crafting appropriate auction and
service rules; and (4) in light of the public safety services provided
using Part 90 spectrum, auctioning such spectrum is not in the public
interest. AICC and AAA further suggest that those commenters who favor
the adoption of general competitive bidding procedures for all spectrum
might not have considered the possibility of auctions for shared
channels, since the Commission is not currently authorized to award
licenses for such spectrum by means of competitive bidding. The
Commission agrees that shared spectrum is, by definition, not
auctionable under Section 309(j) due to the lack of mutual exclusivity.
10. Similarly, Hughes suggests that in the event the Commission
decides to auction satellite services, it should conduct a service-
specific rule making specially tailored to the capital intensive nature
of the satellite industry, instead of employing the general competitive
bidding procedures adopted in this proceeding. Although the Commission
does not decide that issue now, as the Commission suggested in the
Notice, the Commission will continue to adopt service-specific auction
procedures where it finds that its general competitive bidding
procedures are inappropriate.
III. Rules Governing Designated Entities
11. Section 309(j)(4)(D) of the Communications Act of 1934 provides
that in prescribing rules for a competitive bidding system, the
Commission shall ``ensure that small businesses, rural telephone
companies, and businesses owned by members of minority groups and women
are given the opportunity to participate in the provision of spectrum-
based services.'' 47 U.S.C. 309(j)(4)(D). The statute further directs
the Commission to consider the use of tax certificates, bidding
preferences, alternative payment schedules and methods of calculations
and other procedures as means of accomplishing this statutory
objective. See 47 U.S.C. 309(j)(3)(B) and (j)(4)(D).
12. The Commission adopts the rules in this Third Report and Order
in order to facilitate broad-based participation in auctions. The
Commission believes that standardizing the rules regarding definitions
of eligible entities, unjust enrichment and bidding credits will assist
small, minority and women-owned businesses because the rules'
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predictability will facilitate the business planning and capital
fundraising process. While the Commission suspends the use of
installment payments, the Commission seeks comment in the Second
Further Notice of Proposed Rule Making in this docket on whether
installment payments should be adopted in the future.
13. The Commission also notes that pursuant to Section 309(j)'s
obligations to ensure opportunities for participation by small
enterprises, rural telephone companies, and minority- and women-owned
businesses, and Section 257 of the Telecommunications Act, requiring
that the Commission identify and eliminate market entry barriers for
small and entrepreneurial telecommunications businesses, the Commission
has commenced a series of studies, and has other studies in the
planning process, to examine barriers encountered by minorities and
women in the auctions process and the secondary market for licenses.
When those studies are completed, the Commission will examine whether
additional measures are warranted to promote the objectives of giving
small businesses, rural telephone companies, and women- and minority-
owned businesses the chance to provide spectrum-based services, as
required in Section 309(j).
14. Small Business Size Standards. The Commission adopts its
proposal to continue to define small businesses, as it has in the past,
based on the characteristics and capital requirements of the specific
service. The Commission believes that this approach has given it
flexibility that will continue to benefit small businesses in future
auctions. The Commission also notes that this approach is consistent
with the Small Business Administration's practice of approving small
business size standards on a service-by-service basis. Commenters
addressing this issue support this conclusion. For example, AMTA and
NextWave both believe that the determination of appropriate small
business size standards should be made on a case-by-case basis.
15. No commenters addressed the Commission's proposal in the Notice
to create size standards that require small businesses to have gross
revenues ``not to exceed,'' as opposed to ``less than'' a certain
amount. Nevertheless, the Commission believes that adoption of this
proposal is important to further its objective of establishing uniform
definitions relating to small business standards for future auctions.
From this point forward, the Commission's service-specific small
business definitions will be expressed in terms of average gross
revenues over the preceding three years ``not to exceed'' particular
amounts. The Commission also continues to believe that average gross
revenues provide an accurate, equitable, and easily ascertainable
measure of business size. As the Commission has discussed in the past,
a single gross revenues size standard is an established method for
determining size eligibility for various kinds of federal programs that
aid smaller businesses. NextWave, in its comments, agrees, stating that
gross revenues are a generally reliable measure of whether a company is
indeed small. In addition, while the Commission has used a total assets
test in determining eligibility for entrepreneur blocks, see, e.g., 47
CFR 709(a), the Commission has not used such a test for determining
small business eligibility. The Commission also notes that the Small
Business Act's statutory definition of small business does not use a
total assets test. See 15 U.S.C. 632(c). Thus, the Commission declines
to adopt any other measure of business size, such as a total assets
test, at this time.
16. Definition of Gross Revenues. All commenters addressing the
issue support the Commission's proposal in the Notice to adopt a
uniform definition of gross revenues for all auctionable services. The
Commission believes that a uniform definition of gross revenues, as the
essential element of our small business definitions, furthers the
Commission's goal of establishing uniform definitions and is
administratively efficient. Thus, the Commission adopts a uniform
definition of gross revenues in the Part 1 rules.
17. Various commenters addressed specific aspects of the
Commission's proposed definition of gross revenues. CII supports the
Commission's proposal that applicants be permitted to use either fiscal
year or calendar year figures for calculation purposes. No commenters
opposed this proposal. The Commission is persuaded that permitting use
of either of these figures will assist applicants in providing the most
current information available on their applications. The Commission
concludes that its general gross revenue definition should permit
applicants to support their gross revenue calculations using either
fiscal or calendar years.
18. Several commenters responded to the Commission's tentative
conclusion in the Notice to accept the use of unaudited financial
statements where audited financial statements are unavailable, if
prepared in accordance with Generally Accepted Accounting Principles,
for gross revenue calculations by auction applicants seeking to qualify
for small business status. A majority of these commenters supported the
Commission's tentative conclusion that where audited financial
statements are not available, they should not be required. In
particular, these commenters argue that any strict requirement that
financial statements be audited is unduly burdensome for most small
business applicants. In addition, AMTA contends that the certification
requirement already present on the short-form (FCC Form 175)
application is sufficient to ensure that small business applicants
submit only accurate information, both financial and otherwise, as part
of their applications. Only two commenters, ISTA and PageNet advocate
that applicants use audited financial statements in order to qualify
for small business status. After review of the comments on this issue,
the Commission concludes that such a requirement would be onerous to
small business. The Commission also agrees with AMTA's observation that
the certification requirement on the FCC Form 175 acts to ensure that
applicants submit accurate information. Furthermore, as discussed
below, the Commission also will retain the authority to audit
applicants individually if there is any question concerning small
business status. The Commission therefore declines to require all
applicants to use audited financial statements to support their gross
revenue calculations. Audited financial statements, however, are
necessary if they exist. The Commission also notes that, consistent
with the Small Business Act, 15 U.S.C. 632(c)(ii)(II), where an entity
has been in existence for less than three years, the entity's gross
revenues should be averaged for the relevant number of years the
entity, or its predecessor in interest (affiliate), has been in
existence.
19. Accordingly, as proposed in the Notice, and consistent with the
Commission's broadband PCS rules, the Commission will define gross
revenues for all auctionable services as:
all income received by an entity, whether earned or passive, before
any deductions are made for costs of doing business (e.g., cost of
goods sold), as evidenced by audited financial statements for the
three (3) most recent calendar years or, if audited financial
statements were not prepared on a calendar-year basis, for the most
recently completed fiscal years preceding the filing of the
applicant's short-form (FCC Form 175). If an entity was not in
existence for all or part of the relevant period, gross revenues
shall be evidenced by the audited financial statements of the
entity's predecessor-in-interest or, if there is no identifiable
predecessor-in-interest, unaudited financial statements certified by
the applicant as
[[Page 2318]]
accurate. When an applicant does not have audited financial
statements, its gross revenues must be certified by its chief
financial officer or its equivalent and must be prepared in
accordance with Generally Accepted Accounting Principles.
20. Definition of Affiliate. The Commission adopts its proposal to
adopt a uniform definition of the term ``affiliate'' for all future
auctions. As the Commission discussed in the Notice, the term affiliate
is defined by the Commission's Part 1 rules as an individual or entity
that directly or indirectly controls or has the power to control the
applicant; is directly or indirectly controlled by the applicant; is
directly or indirectly controlled by a third person(s) that also
controls or has the power to control the applicant; or has an
``identity of interest'' with the applicant. The Commission has found
that this definition, which also contains detailed discussion and
examples of relevant terms such as ``control'' and ``identity of
interest,'' has proven workable and is broad enough to address a wide
variety of business structures. In particular, this definition has
helped to ensure that businesses seeking small business status are
truly small. The Commission also believes that this definition, by
focusing on ``indicia of control,'' is consistent with our proposals
regarding attribution of gross revenues of investors and affiliates
discussed in the Second Further Notice of Proposed Rule Making in this
docket.
21. CIRI requests that the Commission include in its general
definition of the term ``affiliate'' an exemption for Indian tribes and
Alaska Regional or Village Corporations, as the Commission did for
broadband PCS, and more recently, for LMDS. The Commission agrees with
CIRI that entities owned and controlled by Indian tribes and Alaska
Regional or Village Corporations should be eligible to bid in future
auctions as small businesses, notwithstanding their affiliation with
other entities owned by tribes or Alaska Native Corporations whose
gross revenues cause the combined average gross revenues of the entity
and its affiliates to exceed the general limits for eligibility for
bidding as such a business. As the Commission stated in support of a
similar exemption from the affiliation rules in LMDS, this exception
will ensure that these entities will have a meaningful opportunity to
participate in spectrum-based services from which they would otherwise
be precluded. Furthermore, the Commission does not believe that this
exemption for the specified entities will entitle them to an unfair
advantage over entities that are otherwise eligible for small business
status.
22. The Commission also takes this opportunity to clarify its Part
1 definition of affiliate. The Commission's Part 1 rules provide that
parties to a joint venture are considered to be affiliated with each
other for purposes of determining the gross revenues of an applicant
seeking to qualify for status as a small business. See 47 CFR
1.2110(b)(4)(x). In the past, however, the term ``consortium'' has been
defined on a service-by-service basis as ``a conglomerate organization
formed as a joint venture between or among mutually independent
business firms, each of which individually satisfies the definition of
a very small business, small business or entrepreneur.'' See, e.g., 47
CFR 101.1112(f) (defining the term ``consortium'' for LMDS). This
results in each member of a consortium being defined as an affiliate of
each other member. The resulting attribution of gross revenues of each
member of the consortium is inconsistent with our intention to permit
small or very small businesses to form consortia as a means of
increasing the capital available to participate in the Commission's
auctions, while still being eligible for status as a small business.
23. The Commission therefore amends Sec. 1.2110(b)(4)(x) to provide
that a ``consortium'' as defined on a service-by-service basis for
purposes of determining status as a designated entity will not be
treated as a ``joint venture'' under our attribution standards. As a
result, when two or more entities form an association that meets the
service-specific definition of a ``consortium,'' the gross revenues of
each entity will not be attributed to each entity in determining
eligibility for designated entity status. The Commission believes that
this clarification to the general definition of the term ``affiliate''
will enhance the ability of small businesses to form associations that
will permit them to bid for licenses that would be too expensive for
them individually. Auction winners have successfully used consortium
structures to acquire licenses and ``spin-off'' licenses post-auction,
and the Commission wishes to continue to make this option available.
24. Definition of Rural Telephone Company. The National Telephone
Cooperative Association (``NTCA'') and the Rural Telecommunications
Group (``RTG''), commented in support of the Commission's proposal in
the Notice to adopt the definition of a rural telephone company
contained in the Telecommunications Act of 1996 as the single
definition of the term to be used in all auctionable services. No
commenters opposed this proposal. As the Commission noted in the
Notice, when the Commission amended the broadband PCS rule, the
Commission stated that using the definition contained in the 1996 Act
would likely expedite the delivery of advanced services to rural areas.
the Commission also noted that adopting the 1996 Act definition would
promote uniformity of regulations and is therefore consistent with the
mandate of that legislation to ease regulatory burdens and eliminate
unnecessary regulation. The Commission believes that the same reasons
for amending this definition in the broadband PCS rules justify
amending the definition in Part 1 for all services subject to
competitive bidding.
25. Thus, the Commission amends Sec. 1.2110(b)(3) to define the
term rural telephone company as a local exchange carrier operating
entity to the extent that such entity--(A) provides common carrier
service to any local exchange carrier study area that does not include
either (i) any incorporated place of 10,000 inhabitants or more, or any
part thereof, based on the most recently available population
statistics of the Bureau of the Census, or (ii) any territory,
incorporated or unincorporated, included in an urbanized area, as
defined by the Bureau of the Census as of August 10, 1993; (B) provides
telephone exchange service, including exchange access, to fewer than
50,000 access lines; (C) provides telephone exchange service to any
local exchange carrier study area with fewer than 100,000 access lines;
or (D) had less than 15 percent of its access lines in communities of
more than 50,000 on the date of enactment of the Telecommunications Act
of 1996.
26. Installment Payments. After careful review of the comments in
this docket, and the Commission's recent decisions in the broadband PCS
C block, LMDS and 800 MHz SMR services, the Commission has determined
that installment payments should not be used in the immediate future as
a means of financing small business participation in the Commission's
auction program. See also ``FCC Announces Spectrum Auction Schedule for
1998,'' Public Notice, DA 97-2497 (rel. November 25, 1997), announcing
the following upcoming auctions: LMDS, 220 MHz, broadband C block
Reauction, 39 GHz, Paging, 800 MHz SMR (Lower 80 and General Category
Channels), Location Monitoring Services (LMS), Public Coast Stations,
Pending Analog Broadcast Licenses for Commercial Radio and Television
Stations, and ``FCC Announces Auction Schedule for the General Wireless
Communications Service,'' Public
[[Page 2319]]
Notice, DA 97-2634 (rel. December 17, 1997). The Commission must
balance competing objectives in Section 309(j) that require, inter
alia, that it promote the development and rapid deployment of new
spectrum-based services and ensure that designated entities are given
the opportunity to participate in the provision of such services. The
Commission notes that its experience has demonstrated that installment
payments may not be necessary to ensure a meaningful opportunity for
small businesses to participate successfully in our auction program.
For example, in the cellular auction of licenses for unserved areas,
which had no special bidding provisions, 36 percent of the licenses
went to small or very small businesses. The Commission also stated that
in assessing the public interest, we must try to ensure that all the
objectives of Section 309(j) are considered. The Commission has found,
for example, that obligating licensees to pay for their licenses as a
condition of receipt requires greater financial accountability from
applicants.
27. In addition, questions have been raised in bankruptcy
litigation about whether the Commission can quickly reclaim licenses
should a licensee declare bankruptcy (even though licenses are
expressly conditioned upon payment and cancel automatically in the
event of non-payment) resulting in significant delays in the provision
of service to the public. While the Commission is confident of
prevailing in any litigation, until controlling precedent is
established or legislation addressing the conflicting rights is
enacted, such delays may occur. In this regard, the Commission has
strongly urged Congress to adopt legislation that would clarify that
provisions of the Bankruptcy Code (1) are not applicable to any FCC
license for which a payment obligation is owed; (2) do not relieve any
licensee from payment obligations; and (3) do not affect the
Commission's authority to revoke, cancel, transfer or assign such
licenses. The Commission also notes that, in order to balance the
impact on small businesses of its decision to discontinue the use of
installment payments in the near future, the Commission is adopting
higher bidding credits than those proposed in the Notice.
28. Therefore, subject to the Commission's proposals in the Second
Further Notice of Proposed Rule Making, the Commission concludes that
until further notice, installment payments should not be offered in
auctions as a means of financing small businesses and other designated
entities seeking to secure spectrum licenses. Consistent with this
decision, the Commission hereby eliminates installment payments in the
auction of the lower 80 and General Category channels in the 800 MHz
SMR service. Although Merlin submits that the elimination of the
Commission's installment payment provisions in any service would be
contrary to the Commission's conclusions in previous rule makings, the
Commission believes that this decision is consistent with suggestions
of CIRI, as well as the Commission's general experience in examining
the success of the installment payment program to date. As the
Commission recently recognized in eliminating installment payments for
LMDS licensees, Congress did not require the use of installment
payments in all auctions, but rather recognized them as one means of
promoting the objectives of Section 309(j)(3) of the Communications
Act. The Commission continues to experiment with different means of
achieving its obligations under the statute, and has offered
installment payments to licensees in several auctioned wireless
services. Installment payments are not the only tool available to
assist small businesses. Indeed, the Commission have conducted auctions
without installment payments. Moreover, Section 3007 of the Balanced
Budget Act requires that the Commission conduct certain future auctions
in a manner that ensures that all proceeds from such bidding are
deposited in the U.S. Treasury not later than September 30, 2002.
Although the Commission seeks comment in the Second Further Notice of
Proposed Rule Making on offering installment payment plans in the
future, the Commission believes that Section 3007 may require that
these auctions be conducted without offering long-term installment
payments. See Balanced Budget Act of 1997. The Conference Report on the
Balanced Budget Act of 1997 indicates that the deadline set forth in
Section 3007 ``applies to all competitive bidding provisions in this
title of the conference agreement and any amendments to other law made
in this title.'' Conference Report on H.R. 2015, Balanced Budget Act of
1997, Congressional Record--House, Vol. 143, No. 109--Part II, at
H6176.
29. In this regard, the Commission agrees with commenters such as
CIRI, that contend that increased bidding credits will allow
responsible small bidders with appropriately tailored business plans to
secure adequate private financing to be successful in future auctions.
Further, as the Commission has already noted, Section 309(j) requires
the Commission to consider alternative methods to allow for
dissemination of licenses among designated entities, including small
businesses. The Commission believes that the rules it adopts below
regarding the use of bidding credits for small business applicants in
future auctions will both fulfill the mandate of Section 309(j) to
provide small businesses with the opportunity to participate in
auctions and ensure that new services are offered to the public without
delay.
30. Merlin contends that while significant bidding credits can be
useful in helping smaller entities win licenses when they bid against
larger companies, bidding credits alone do not help smaller entities
access the capital required to build a spectrum-based service. In
addition, Merlin states that eliminating the installment payment plan
would raise the cost of capital for small businesses which would be
forced to borrow additional funds from commercial lenders at higher
interest rates. Merlin also argues that because many small businesses
have relied on the current installment plan terms in formulating
business plans necessary to bid in upcoming auctions, any decision to
eliminate the installment payment program could effectively preclude
small business participation in future auctions altogether. The
Commission disagrees with Merlin's assertions. As the Commission has
discussed, the Commission believes that the increased bidding credits
it adopts below will help fulfill the mandate of Section 309(j)(4)(D)
of the Communications Act to provide small businesses with the
opportunity to participate in spectrum-based services. As noted above,
this approach was successful in enabling small businesses to
participate in the WCS auction, in which the Commisison was unable to
employ installment payments because of the statutory deadline for
depositing auction revenues in the U.S. Treasury. The Commission also
recently used this approach in establishing rules for the auction of
licenses for 800 MHz SMR and LMDS.
31. The Commission recognizes that it previously adopted rules for
both the 220 MHz and paging services that permit eligible small
businesses to pay for their licenses in installments. Several petitions
for reconsideration have been filed in these proceedings that remain
pending before the Commission. The Commission will resolve these
petitions separately in a manner consistent with our decision herein to
suspend the use of installment payment plans at least until our rights
[[Page 2320]]
to recover and reauction licenses in a timely fashion are established.
32. Bidding Credits. Although all commenters addressing the issue
are largely supportive of the use of bidding credits as a means of
ensuring the widest possible participation in future auctions, there is
disagreement among commenters as to whether a standard schedule of
bidding credits for small businesses is desirable. For example, CII
supports our proposal to standardize the sliding scale of bidding
credits that is available to an applicant. Specifically, CII believes
that granting businesses of different sizes different levels of bidding
credits in different services threatens to result in inconsistent
participation by small businesses in spectrum auctions. In contrast,
some commenters oppose any set schedule of bidding credits, and believe
that the Commission should specify appropriate bidding credits for each
auctionable service. Among these, PCIA and AMTA believe that the
Commission should continue to examine what constitutes an effective
bidding credit on a service-by-service basis because the financing
requirements of different spectrum-based services may necessitate use
of different size bidding credits to provide the proper assurances that
small businesses will be able to effectively compete. As the Commission
stated in the Notice, the Commission believes that an approach in which
the Commission provides certainty for future auctions about the size of
available bidding credits will benefit small businesses because
potential bidders will have more information well in advance of the
auction than previously about how such levels will be set. Once a small
business definition is adopted for a particular service, eligible
businesses will benefit they are able to refer to a schedule in our
Part 1 rules to determine the level of bidding credit available to
them. The Commission therefore adopts its proposal to create a standard
schedule of bidding credits.
33. In light of the Commission's decision to suspend installment
payment financing for the near future, the Commission has determined
that higher bidding credits than those proposed in the Notice would
better effectuate our statutory mandate. Airadigm supports larger
bidding credits than those proposed by the Commission. Similarly, CIRI
contends that unless the Commission is prepared to establish the
creditworthiness of installment payment applicants, the Commission
should offer substantial bidding credits to small businesses in lieu of
government financing. The Commission notes that some commenters argue
that, in relation to installment payment provisions, bidding credits
are less effective in allowing designated entities to participate in
the Commission's auction program. For example, Pocket states that
bidders often ``bid through'' bidding credits and that bidding credits
tend to result in higher bids and, in general, higher auction prices.
The Commission believes that without installment payments, bidding
credits, coupled with providing bidders sufficient time to raise
financing, will enable small businesses to successfully compete in
future auctions. Also, tiered bidding credits have proven to work well
and provide for more competition between small business participants of
different sizes. The use of tiered bidding credits was successful in
enabling small businesses to participate in the WCS auction, in which
the Commission was unable to employ installment payments because of the
statutory deadline for depositing auction revenues in the U.S.
Treasury. Finally, while the Commission recognizes Pocket's concerns
about the possibility that bidders ``bid through'' bidding credits, the
Commission does not believe that this problem is significant where not
all bidders are eligible for bidding credits, and the size of the
bidding credit varies among those who are eligible.
34. Consistent with this reasoning, the Commission adopts the
following schedule of bidding credits for use in future auctions in
which provisions for designated entities are offered:
------------------------------------------------------------------------
Bidding
Average annual gross revenues credits
(percent)
------------------------------------------------------------------------
Not to exceed $3 million..................................... 35
Not to exceed $15 million.................................... 25
Not to exceed $40 million.................................... 15
------------------------------------------------------------------------
The Commission recognizes that these credits are higher than some
previously adopted for specific services. Based on the Commission's
past auction experience and the suspension of installment payments,
however, the Commission believes that the approach taken here will
provide adequate opportunities for small businesses of varying sizes to
participate in spectrum auctions.
35. The Commission recognizes that Merlin recommends providing
higher bidding credits than those which the Commission adopts.
Specifically, Merlin suggests that (1) businesses with average gross
revenues for the preceding three years not exceeding $3 million be
eligible for bidding credits of 40 percent; (2) businesses with average
gross revenues for the preceding three years not exceeding $15 million
be eligible for bidding credits of 35 percent; and (3) businesses with
average gross revenues for the preceding three years not exceeding $40
million be eligible for bidding credits of 25 percent. As discussed
above, the Commission believes that higher bidding credits than those
proposed in the Notice are necessary now that our installment payment
program is suspended. The Commission believes that the schedule of
bidding credits it adopts is reasonable in light of our decision to
suspend installment payments for services auctioned in the immediate
future, and expect that it will prove sufficient to enable small
businesses to obtain spectrum licenses through our auction program.
Thus, the Commission declines to adopt Merlin's proposal. The
Commission also notes that it seeks comment in the Second Further
Notice of Proposed Rule Making on means other than bidding credits and
installment payments by which the Commission might facilitate the
participation of small businesses in our spectrum auction program.
36. Unjust Enrichment. The Commission adopts its proposal to
conform the Part 1 unjust enrichment rules to the broadband PCS rules.
The Commission believes that effective unjust enrichment rules are
necessary to ensure that meaningful small business participation in
spectrum-based services is not thwarted by transfers of licenses to
non-designated entities. As the Commission stated in the Notice, the
broadband PCS unjust enrichment rules are preferable to our current
general unjust enrichment rules because they provide greater
specificity about funds due at the time of transfer or assignment and
specifically address changes in ownership that would result in loss of
eligibility for installment payments, which the current general rules
do not address. The broadband PCS rules also address assignments and
transfers between entities qualifying for different tiers of
installment payments or bidding credits, thus supplying clearer
guidance for auctions in which tiered installment payment plans or
bidding credits are provided. Commenters addressing this issue largely
support this decision. For example, Pocket and Ericsson both argue that
modified unjust enrichment rules would still deter transfers designed
to subvert the Commission's rules, but would provide businesses with
more flexibility in situations of financial distress and permit the
transfer
[[Page 2321]]
of individual licenses that no longer comport with their business
plans.
37. Current as well as future licensees will be governed by the
rules the Commission adopts providing for unjust enrichment payments
upon assignment, transfer, partitioning and disaggregation. While the
Commission did not receive significant comment on this issue, the
Commission notes that in awarding licenses in the past, the Commission
has emphasized that the terms associated with the continued grant of a
license will be governed by current Commission rules and regulations.
For example, in awarding licenses to C block licensees paying for their
licenses in installments, the Commission indicated in the associated
``Note'' and ``Security Agreement'' that the terms of the installment
plan would be governed by and construed in accordance with then-
applicable Commission orders and regulations, as amended. Therefore,
the Commission concludes that the unjust enrichment rules it adopts
apply to existing licensees, and supersede service-specific rules where
applicable. Specifically, these rules will supersede existing unjust
enrichment provisions in the narrowband and broadband PCS, WCS, 900
MHz, and IVDS services. See 47 CFR 24.309(f) (narrowband PCS), 24.711
(C block), 24.716(d) (F block), 27.209(d)(1), (2) (WCS), 90.812(b) (900
MHz), 95.816(e) (IVDS). As discussed above, the Commission suspends the
use of installment payments for the immediate future as a means of
financing small business participation in the Commission's auction
program. As a result, the Commission's decision with regard to unjust
enrichment payments as they relate to licensees paying for their
licenses in installment payments will apply only to existing licensees,
their transferees and assignees (until the Commission reinstates
installment payments).
Unjust Enrichment and Installment Payments
38. For existing licensees who make use of Commission installment
payment financing, the Commission amends Sec. 1.2111(c) to conform to
the Commission's broadband PCS rules. Specifically, if a licensee seeks
to assign or transfer control of its license to an entity not meeting
the eligibility standards for installment payments, the licensee must
make full payment of the remaining unpaid principal and any unpaid
interest accrued through the date of the assignment or transfer as a
condition of Commission approval. Similarly, if the licensee seeks to
make any change in ownership structure that would result in the
licensee losing eligibility for installment payments, the licensee must
first seek Commission approval and must make full payment of the
remaining unpaid principal and any unpaid interest accrued through the
date of such change as a condition of approval. If a licensee seeks to
make any change in ownership that would result in the licensee
qualifying for a less favorable installment plan, the licensee must
seek Commission approval and must adjust its payment plan to reflect
its new eligibility status.
Unjust Enrichment and Bidding Credits
39. For existing and future licensees who qualified or qualify in
the future for a bidding credit in paying for their winning bid, the
Commission also amends Sec. 1.2111(c) to provide for unjust enrichment
payments similar to those contained in the Commission's broadband PCS
rules. Specifically, during the term of the initial license grant, if a
licensee seeks to assign or transfer control of its license to an
entity not meeting the eligibility standards for bidding credits, or
seeks to make any other change in ownership that would result in the
licensee no longer qualifying for a bidding credit, the licensee must
seek Commission approval and must reimburse the government for the
amount of the bidding credit, plus interest based on the rate for U.S.
Treasury obligations applicable on the date the license is granted, as
a condition of the approval of such assignment, transfer or other
ownership change. Similarly, if the licensee seeks to assign or
transfer control of its license to an entity meeting the eligibility
standards for lower bidding credits, or seeks to make any other change
in ownership that would result in the licensee qualifying for a lower
bidding credit under this section, the licensee must seek Commission
approval and must pay to the United States Treasury the difference
between the amount of the bidding credit obtained by the licensee and
the bidding credit for which the assignee, transferee or licensee is
eligible as a condition of the approval of such assignment, transfer or
other ownership change. These provisions also will apply to licensees
who partition or disaggregate their licenses.
40. The Commission also adopts its proposal in the Notice to
provide for decreasing unjust enrichment payments for licensees that
utilized a bidding credit when paying for their licenses and that make
transfers and assignments occurring later in the license term. This
decision also is supported by the commenters. In amending the rule in
this manner, the Commission ensures that its general rule resembles
those rules the Commission has adopted in specific services (e.g., MDS,
narrowband PCS, and 900 MHz SMR ) that reduce the amount of unjust
enrichment payments due on transfer based upon the amount of time the
initial license has been held. Consistent with the rules that exist in
these services, the amount of this payment will be reduced over time as
follows: A transfer in the first two years of the license term will
result in a forfeiture of 100 percent of the value of the bidding
credit (or, in the case of very small businesses transferring to small
businesses, 100 percent of the difference between the bidding credit
received by the former and the bidding credit for which the latter is
eligible); in year three of the license term the payment will be 75
percent; in year four the payment will be 50 percent; and in year five
the payment will be 25 percent, after which there will be no payment.
These assessments will have to be paid to the U.S. Treasury as a
condition of approval of the assignment, transfer, or ownership change.
All current and future licensees, with the exception of entrepreneur
block licensees subject to restrictions on assignments and transfers of
licenses, will be governed by this modification to our general rules.
The Commission believes that our decision to maintain the original
transfer restrictions for such licensees is proper in light of the
special provisions which were made available for licensees in the
Commission's entrepreneur blocks.
Unjust Enrichment and Partitioning and Disaggregation
41. Also as proposed in the Notice, the Commission will adopt a
general rule modeled on the Commission's broadband PCS rules to
determine the amount of unjust enrichment payments assessed for all
current and future licensees. Thus, the Commission adopts a general
unjust enrichment rule that treats partitioning and disaggregation by
licensees in the same manner as the broadband PCS rule. Specifically,
if the licensee seeks to partition any portion of its geographic
service area, the amount of the unjust enrichment payment discussed
above will be calculated based upon the ratio of population in the
partitioned area to the overall population of the licensed area.
Similarly, if a licensee seeks to disaggregate spectrum, the amount of
the unjust enrichment payment will be determined based upon the ratio
of the amount of spectrum disaggregated to the amount of spectrum held
by the disaggregating licensee.
[[Page 2322]]
IV. Application Issues
42. Electronic Filing. The Commission believes that electronic
filing of all short-form and long-form applications for auctionable
services is in the best interest of auction participants, as well as
members of the public monitoring Commission auctions. Therefore, the
Commission amends Secs. 1.2105(a) and 1.2107(c) of its rules to require
electronic filing of all short-form and long-form applications,
beginning January 1, 1999, unless it is not operationally feasible.
Although in the Notice the Commission proposed to require electronic
filing commencing January 1, 1998, the Commission believes that this
additional phase-in period before the requirement becomes effective
will benefit potential bidders. The majority of the comments addressing
the issue support the decision to require electronic filing. For
example, PageNet contends that electronic filing promotes access to
applications by competing bidders, as well as the general public, by
making it possible to review and download applications without
traveling to FCC headquarters or contracting for photocopying of paper
applications. To facilitate public access, the Commission has developed
user-friendly electronic filing software and Internet World Wide Web
forms to give auction applicants the ability to conveniently file and
review applications. This software helps applicants ensure the accuracy
of their applications as they are filling them out, and enables them to
correct errors and omissions prior to submitting their applications. To
assist the public, the Commission provides technical support personnel
to answer questions and work with callers using the electronic auction
system. In addition, the Commission has demonstrated its auction
software at conferences organized by potential bidders and members of
the industry in order to familiarize interested parties with our recent
software enhancements.
43. AT&T is generally supportive of electronic filing, but proposes
that the Commission create a waiver process whereby an applicant that
has missed a filing deadline due to technical problems can obtain a
waiver quickly or be permitted to submit a paper original of the
application by hand or mail the same day. In addition, AT&T requests
that a Commission staff member be provided with the authority to grant
such a waiver in the event of electronic filing difficulties. The
Commission does not believe that a specific waiver provision is
necessary. The Commission's existing waiver provisions, which specify
the showing required for the grant of a waiver, provide adequate
assurance that requests for waiver relating to the electronic filing of
applications will receive proper consideration. In addition, the
Commission emphasizes that it has typically responded rapidly to time-
sensitive waiver requests filed by auction applicants, and intends to
continue to do so in the future.
44. Only one commenter, Airadigm, opposes an electronic filing
requirement. Airadigm states that the Commission experienced
difficulties in processing electronic filings during the IVDS auction
and argues that removing the option of manual filing could result in
similar problems in future auctions. The Commission believes that the
system enhancements discussed above, most of which were not in place
during the IVDS auction, adequately respond to Airadigm's concerns. The
Commission also notes that its experiences from recent auctions
demonstrate that the electronic bidding system is reliable. For
example, in the broadband PCS D, E, and F block auction, 94 percent of
the qualified bidders filed their short-form applications
electronically. In the recently completed 800 MHz SMR auction, 93
percent of the qualified bidders filed their short-form applications
electronically. The Commission did not experience problems with its
electronic filing procedures.
45. Finally, as the Commission stated in the Notice, the Commission
recognizes that there is a need for a period of time before a
comprehensive electronic filing requirement becomes effective in order
for bidders to prepare and be completely comfortable with this process.
The effective date of January 1, 1999, will provide potential bidders
with adequate time in which to adapt to electronic filing requirements.
Finally, although the Commission concludes that electronic filing is
the preferred filing method, the Commission nevertheless reserves the
right to provide for manual filing in the event of technical failure or
other difficulties.
46. Short-form Application Amendments. The majority of commenters
support the Commission's proposal in the Notice to create a uniform
definition of major and minor amendments to applicants' short-form (FCC
Form 175) applications for all future auctions. However, commenters'
opinions differ on what types of amendments the Commission should
categorize as major or minor. For example, AT&T and ISTA argue that
major amendments should include all changes in ownership that
constitute a change in control, as well as all changes in size that
would affect an applicant's eligibility for designated entity
provisions. In contrast, Metrocall contends that all changes in
ownership incidental to mergers and acquisitions, non-substantial pro
forma changes, and involuntary changes in ownership should be
categorized as minor. Metrocall also states that an applicant should
not be permitted to upgrade its designated entity status after the
short form filing deadline (i.e., go from a ``small'' to ``very small''
business), but should be permitted to lose its designated entity status
as a result of a minor change in control (i.e., exceed the threshold
for eligibility as a small business).
47. After careful consideration of the comments addressing the
issue, the Commission concludes that a definition of major and minor
amendments similar to that provided in the Commission's PCS rules, 47
CFR 24.822, is appropriate. After the short-form filing deadline,
applicants will be permitted to make minor amendments to their short-
form applications both prior to and during the auction. However,
applicants will not be permitted to make major amendments or
modifications to their applications after the short-form filing
deadline. Major amendments will include, but will not be limited to,
changes in license areas designated on the short-form application,
changes in ownership of the applicant which would constitute a change
in control, and the addition of other applicants to any bidding
consortia. Consistent with the weight of the comments addressing the
issue, major amendments will also include any change in an applicant's
size which would affect an applicant's eligibility for designated
entity provisions. For example, if Company A, an applicant that
qualified for special provisions as a small business, merges with
Company B during the course of an auction, and if, as a result of this
merger, the merged company would not qualify as a small business, the
amendment reflecting the change in ownership of Company A would be
considered a major amendment. Otherwise, the new entity could receive
small business bidding credits and installment payments when it does
not qualify for them. As is the case in the Commission's PCS rules,
however, applicants will be permitted to amend their short-form
applications to reflect the formation of bidding consortia or changes
in ownership that do not result in a change in control of the
applicant, provided that the parties forming consortia or entering into
ownership agreements have not applied for licenses
[[Page 2323]]
in any of the same geographic license areas. In contrast, minor
amendments will include, but will not be limited to, the correction of
typographical errors and other minor defects, and any amendment not
identified as major.
48. As noted above, the Commission has generally refused to grant
requests to add or delete markets on an applicant's short-form
application in order to prevent collusive conduct or gaming that would
reduce the competitiveness of the auction. While the Commission
recognizes that there may be some circumstances in which the
competitiveness of the auction might be enhanced by allowing applicants
to add markets to their short-form applications, the Commission
concludes that the risks of encouraging or facilitating conduct that
negatively affects the competitiveness of the auction and the post-
auction market structure outweigh the benefits of categorizing such
amendments as minor. Several commenters support this conclusion that
the addition or deletion of markets on the short-form application
should always be deemed a ``major'' amendment. Specifically, PageNet
states that because the only new information that an applicant could be
deemed to possess at this stage would be licenses on which other
applicants intend to bid, amendment of the short-form application in
this regard could only lead to auction abuses. Those commenters
supporting defining the addition or deletion of markets after the
short-form filing deadline as a minor amendment argue that such an
amendment should only be permitted prior to the upfront payment
deadline or the release of the Public Notice announcing qualified
bidders. After this point, the overall competitiveness of the auction
may be threatened.
49. AT&T proposes that the deletion of markets to avoid specifying
markets that overlap with another auction applicant (and thus
preventing discussion on potentially non-auction-related matters such
as interconnection, resale, and equipment orders that do not affect
bids or bidding strategies) be deemed a minor amendment. The Commission
notes that in previous auctions some applicants have inadvertently
placed themselves at risk of violating the Commission's anti-collusion
rule by choosing to specify ``all markets'' on their short-form
applications when they intended to bid only on a particular license or
group of licenses. As a general matter, the anti-collusion rule does
not prohibit non-auction-related business negotiations between auction
applicants that have applied for the same geographic service areas.
AT&T argues that the aspect of the rule prohibiting the addition or
deletion of markets often has had the unfortunate result of
discouraging non-auction, business-related discussions between auction
applicants who are not actually bidding for licenses in the same
geographic license areas. Because of the potential anti-competitive
results of allowing bidders to delete markets after the short-form
filing deadline, however, the Commission believes that this type of
error can be more effectively addressed by other means, including
increased awareness on the part of prospective auction applicants of
the consequences of choosing ``all markets,'' as well as software
enhancements that make specifying particular markets on the FCC Form
175 less burdensome.
50. The Commission also emphasizes that, pursuant to Sec. 1.65 of
the Commission's rules, each auction applicant is required to assure
the continuing accuracy and completeness of information furnished in a
pending application. See 47 CFR 1.65. Each applicant is therefore under
a continuing obligation to update its short-form and long-form
applications as appropriate to reflect any changes that would make a
pending application inaccurate or incomplete, or that are necessary to
determine that an applicant is in compliance with our rules. As in all
prior auctions, an application that is amended by a major amendment
will be considered newly filed, and therefore will not be accepted
after the short-form filing deadline. The Commission further notes that
it has waived its ex parte rules as they apply to the submission of
amended short-form applications to maximize applicants' opportunities
to seek the advice of Commission staff when making amendments at any
time after the short-form filing deadline.
51. Finally, the Commission notes that in the context of cellular
unserved area licensing, WWC contends that the rules adopted in this
proceeding addressing major and minor amendments to short-form
applications should not apply to cellular unserved area applications
filed in 1994 as these applications were to be governed by a ``letter-
perfect'' standard and applicants were given no opportunity to cure
minor defects. While the Commission has considered WWC's argument, the
Commission believes that it is inapplicable. WWC addresses the initial
application procedures for cellular unserved area licenses, while the
Part 1 rules, in contrast, address application procedures for
participation in an auction once a finding of mutual exclusivity has
been made.
52. Ownership Disclosure Requirements. As the Commission indicated
in the Notice, the Commission continues to believe that detailed
ownership information is necessary to ensure that applicants claiming
small business status qualify for such status, and to ensure compliance
by all applicants with spectrum caps and other ownership limits.
Disclosure of ownership information also aids bidders by providing them
with information about their auction competitors and alerting them to
entities subject to our anti-collusion rules. Therefore, the Commission
adopts standard ownership disclosure requirements for all auctionable
services that will avoid the variations found in the Commission's
current service-specific ownership disclosure requirements.
53. This decision is widely supported by the majority of comments
in this proceeding. Most commenters addressing the issue of ownership
disclosure support requiring some level of ownership information at the
short-form application stage. For example, PCIA believes that full
disclosure of bidder ownership information is necessary if competing
bidders are to accurately assess the legitimacy of their auction
opponents and their respective bids. PCIA contends that there can be no
valid reason for legitimate bidders to hide their ownership. Such
information, according to PCIA, is crucial for purposes of the
Commission's anti-collusion rules, spectrum caps, and other ownership
limits. Similarly, PageNet contends that full ownership disclosure is
important to aid bidders in compiling information about their auction
competitors and, most importantly, to alert them to any conduct that
might be a violation of the Commission's anti-collusion rules. In the
satellite context, Hughes argues that the submission of detailed
ownership information is essential because of the extreme costs
associated with the build-out of a satellite system. In contrast, only
CII argues that the Commission's objectives with regard to the rules
governing designated entity status, spectrum caps, and other ownership
limitations would be fully satisfied by deferring the filing of
comprehensive ownership information until the long-form application
stage.
54. For all future auctions, therefore, the Commission will model
our reporting requirements on the general application requirements
contained in our broadband PCS rules. Under this standard, all auction
applicants will be required to disclose the real party or parties in
interest by including as an exhibit to their short-form applications
[[Page 2324]]
detailed ownership information. Although the Commission's current Part
1 rules require auction applicants to list all owners of a five percent
or greater interest in the applicant, the Commission agrees with
commenters such as CII that argue that applicants should not be
required to list all holders of this small an interest in the
applicant, unless they are in a position of control by virtue of other
factors (i.e., voting agreements, management structure), or hold a
significant passive ownership interest (i.e., 20 percent). Thus, the
Commission amends its rules to require that applicants list controlling
interests as well as all parties holding a 10 percent or greater
interest in the applicant and any affiliates of these interest holders.
See 47 CFR 1.2110(b)(4). A 10 percent or greater interest reporting
requirement is consistent with the revised definition of the term
``applicant'' we adopt for purposes of the anti-collusion rule. The
Commission notes that PageNet contends that the Commission should
require disclosure of entities and individuals that own more than five
percent of the applicant or who have provided more than five percent of
the applicant's equity. However, as suggested above, the Commission
believes that the detailed reporting requirement we create today, in
combination with our comprehensive affiliation rules, permits us to
determine the ``real party or parties in interest'' when parties apply
to participate in an auction.
55. Specifically, all auction applicants will be required to
disclose: (1) A list of any FCC-regulated business, 10 percent or more
of whose stock, warrants, options or debt securities are owned by the
applicant; (2) a list of any party holding a 10 percent or greater
interest in the applicant, including the specific amount of the
interest; (3) a list of any party holding a 10 percent or greater
interest in any entity holding or applying for any FCC-regulated
business in which a 10 percent or greater interest is held by another
party which holds a 10 percent or greater interest in the applicant
(e.g., if company A owns 10% of company B (the applicant) and 10% of
company C, a company holding or applying for an FCC-regulated business,
the companies A and C must be listed in company B's application); (4)
the name, address and citizenship of any party holding 10 percent or
more of each class of stock, warrants, options or debt securities,
together with the amount and percentage held; (5) the name, address and
citizenship of all controlling interests of the applicants, as this
term is defined in Sec. 1.2110 of our rules; (6) if the applicant is a
general partnership, the name, address and citizenship of each partner,
and the share or interest participation in the partnership; (7) if the
applicant is a limited partnership, the name, address and citizenship
of each general partner and each limited partner whose interest in the
applicant is equal to or greater than 10 percent (as calculated
according to the percentage of equity paid in and the percentage of
distribution of profits and losses); (8) if the applicant is a limited
liability corporation, the name, address and citizenship of each of its
members; and (9) a list of all parties holding indirect ownership
interests in the applicant, as determined by successive multiplication
of the ownership percentages for each link in the vertical ownership
chain, that equal 10 percent or more of the applicant, except that if
the ownership percentage for an interest in any link in the chain
exceeds 50 percent or represents actual control, it shall be treated
and reported as if it were a 100 percent interest. See, e.g., 47 CFR
20.6(d)(8).
56. In addition, consistent with the reporting requirements set
forth in the 900 MHz SMR rules, the Commission will require that
applicants claiming small business status disclose on their short-form
applications the names of each controlling interest and affiliate, as
these terms are defined in this proceeding, and to provide gross
revenues calculations for each. On their long-form applications, such
applicants will be required to disclose any additional gross revenues
calculations, any agreements that support small business status, and
any investor protection agreements. The Commission believes that these
reporting requirements will help to assure that only qualifying
applicants obtain the benefits of our small business provisions,
without being unduly burdensome.
57. Finally, in a related proposal, PageNet states that Commission
should expressly prohibit ``blind bidding'' (i.e., bidding in which
auction participants do not know the identities or ownership
information of the other bidders in the auction) in any pending and
future auction because it (1) is unfair to auction participants; (2)
encourages auction abuses; and (3) encourages speculation. PageNet
contends that these factors can have a significant impact upon the
competitiveness of the auction and the post-auction marketplace. In
situations in which an incumbent has already met the Commission's
build-out requirements and must still bid in an auction in which blind
bidding is used, PageNet contends that a competitor is often able to
bid up the price of a license that it never intends to win in order to
force the incumbent to buy the license at a higher price. PageNet
further contends that this higher price is then reflected in higher
rates for services, which in turn affect the incumbent's ability to
compete. As discussed above, the Commission agrees that it is important
that auction applicants disclose certain ownership information prior to
the start of an auction. At the same time, however, the Commission
believes that in certain circumstances, the competitiveness of an
auction may be increased if less bidder information is made available.
In the Competitive Bidding Second Memorandum Opinion and Order, the
Commission retained the flexibility to conceal bidder identities if
further experience showed that it would be desirable to do so. More
recently, in the auction rules for geographic area paging licenses, the
Commission concluded that the advantages of limiting information
disclosed to bidders outweigh the disadvantages of this approach, and
reserved the discretion to announce by Public Notice prior to the
auction the precise information to be revealed to bidders during that
auction. The Commission believes that the uniform rules adopted today
provide the Commission with the necessary flexibility to tailor the
amount of bidder information made available to applicants to ensure the
competitiveness of each auction. The Commission therefore declines to
adopt a provision prohibiting non-disclosure of bidder identities in
all future auctions.
58. Ownership Disclosure Filings. The Commission believes that
permitting applicants to file ownership information when they apply for
their first auction, which would then be stored in a central database
and updated each time the information changes during or after the first
auction and when applicants participate in a subsequent auction, will
streamline our application processes and minimize the burden on auction
applicants. This concept is supported by the record. For example, CII
and Airadigm argue that this approach will benefit auction applicants
by reducing the time spent preparing auction applications, and will
benefit the Commission by eliminating the need to review and analyze
duplicative filings. The Commission believes that by requiring
ownership disclosure filings, we ensure that we receive all the
information necessary to evaluate an applicant's qualifications. As the
[[Page 2325]]
Commission indicated in the Notice, however, these requirements could
result in duplicative filings. For example, where licenses for a
service are offered in a series of blocks, as in the case of broadband
PCS, an entity may wish to participate in several auctions, and would
be required to disclose the same information a number of times. Under
the system the Commission envisions, when applying to participate in
subsequent auctions, applicants will be permitted to update the
database or certify that there have been no changes in ownership and
that the information contained in the database remains correct. The
Commission will look to implement this process in the near future as
part of our Universal Licensing System.
59. Audits. The only commenters to address this proposal, PageNet
and Airadigm, support this proposal. Airadigm requests that applicants
and licensees subject to audit be afforded sufficient time to provide
information to the Commission and that the Commission issue written
findings following its examination. The Commission therefore adopts its
proposal, and will modify our rules governing status as a designated
entity to expressly provide that applicants and licensees claiming
eligibility for special provisions shall be subject to audits by the
Commission. Such audits will be governed by the standards set forth in
Sections 403 and 308(b) of the Communications Act. 47 U.S.C. 403,
308(b). The Commission believes that these provisions, as well as the
general provisions of the Administrative Procedure Act, will adequately
address Airadigm's concerns, and the Commission therefore declines at
this time to adopt specific rules to govern audits of applicants and
licensees conducted in the future.
V. Payment Issues
60. Determination of Upfront Payment Amount. In the Competitive
Bidding Second Report and Order, the Commission indicated that the
upfront payment should be set using a formula based upon the amount of
spectrum and population (or ``pops'') covered by the license or
licenses for which parties intend to bid. The Commission reasoned that
this method of determining the required upfront payment would enable
prospective bidders to tailor their upfront payment to their bidding
strategies. At the same time, however, the Commission noted that
determining an appropriate upfront payment involved balancing the goal
of encouraging bidders to submit serious, qualified bids with the
desire to simplify the bidding process and minimize implementation
costs imposed on bidders. The Commission concluded that the best
approach would be to maintain the flexibility to determine the amount
of the upfront payment on an auction-by-auction basis, because this
balancing may yield different results depending upon the particular
licenses being auctioned.
61. Many commenters make specific proposals regarding the proper
size and terms for assessing upfront payments in future auctions. For
example, PageNet and CII suggest that the Commission adopt a standard
upfront payment rule requiring separate upfront payments for each
license identified in an applicant's short-form application. CII
contends that this would reduce the number of ``phantom'' mutual
exclusivities (i.e., theoretical frequency conflicts caused by the fact
that the current auction rules create no financial disincentive to list
licenses in an application on which the applicant has no bona fide
intention to bid). In contrast, Airadigm and NPCS argue that the
Commission should not require a separate upfront payment for each
license on which an entity elects to bid, as this would limit bidders'
flexibility to change strategy and force them to reveal their bidding
strategy prior to the start of the auction. In an alternate proposal,
AirTouch and CII suggest that the Commission require applicants to
increase their upfront payments as an auction progresses to equal a
percentage of their total bids. AirTouch argues that this requirement
would reduce the risk of defaults and discourage parties from
submitting ``jump bids'' where they have no intention of actually
winning a particular license. Similarly, to reduce the risk of default,
CII recommends that when an applicant's upfront payment drops below a
specific percentage of its high bid amount, the Commission allow the
applicant to increase its deposit to a certain percentage of its high
bid total within ten business days. In contrast to these two proposals,
Airadigm opposes increasing the upfront payment requirement once a
bidder's bid amount exceeds a certain multiple of the original upfront
payment amount because this would create a significant barrier to small
businesses.
62. The Commission agrees with Airadigm and NPCS that it is
unnecessary to adopt additional rules governing the amount of the
upfront payment and the terms under which it is assessed. The
Commission believes its reasoning in the Competitive Bidding Second
Report and Order remains valid, and that the required upfront payment
should be tailored to the particular auction design and to the
characteristics of the licenses being auctioned. This determination can
be made in a variety of ways and using a variety of techniques to
estimate the value of the spectrum being auctioned; however, as a
general rule we have required an upfront payment equal to $0.02 per pop
per megahertz. As discussed infra, under the current competitive
bidding rules the Commission maintains the discretion to alter the
amount of the required upfront payment or to modify the terms under
which the upfront payment is assessed. The Commission believes that
retaining this discretion provides the Commission with the greatest
level of flexibility to determine the appropriate upfront payment
amount on an auction-by-auction basis.
63. Refund of Upfront Payments. After considering the issue in
light of Congress's 1996 amendment to Section 309(j)(8)(C) and the
comments received in this proceeding, the Commission will continue our
current practice of returning the upfront payments of bidders who have
completely withdrawn from an auction prior to the conclusion of
competitive bidding. As the Commission suggested in the Notice, it is
unclear whether Congress intended, in amending Section 309(j)(8)(C), to
require the Commission to change its practice of refunding upfront
payments to bidders who withdraw during the course of an auction. The
Commission continues to believe, however, that the prompt return of
upfront payments is in the public interest, because it prevents
unnecessary encumbrances on the funds of auction bidders, many of whom
may be small businesses, after they have withdrawn from the auction. In
addition, we believe that this practice minimizes the financial burdens
of participating in an auction, because auction participants earn no
interest on upfront payment funds on deposit with the Commission.
Moreover, all commenters addressing the issue support our proposal to
continue this practice. AirTouch proposes that the Commission retain an
administrative fee based upon the number of rounds an applicant has
remained in the auction when it refunds upfront payments to bidders who
have withdrawn. Airadigm and AT&T state that not returning upfront
payments in a prompt manner in circumstances where a bidder has
withdrawn is akin to a ``fee'' that Congress did not intend to
authorize, and that may work to discourage participation in the
Commission's auction program. The Commission agrees with Airadigm and
AT&T, and conclude that such a fee is
[[Page 2326]]
inappropriate, and therefore, rejects AirTouch's proposal.
64. Down Payment and Full Payment for Licenses
Level of Down Payments
65. The Commission created the down payment requirement in the
Competitive Bidding Second Report and Order, in which the Commission
concluded that at the conclusion of the auction, a bidder must tender a
significant and non-refundable down payment to the Commission over and
above its upfront payment in order to provide further assurance that
the winning bidder will be able to pay the full amount of its winning
bid. The Commission believes that a substantial down payment is
required to ensure that licensees have the financial capability to
attract the capital necessary to deploy and operate their systems, and
to protect against default. Because it is due soon after the close of
the auction, the down payment is a valuable indicator of a license
applicant's financial viability. In addition, the Commission believes
that it is important it learns early on in the licensing process when
an applicant might be unable to finance its winning bid or bids.
66. Several commenters oppose any increase in the down payment
beyond 20 percent of the high bid amount. Airadigm opposes granting the
Bureau the discretion to establish a down payment amount because it
believes that the Bureau could unfairly disadvantage small businesses
by requiring disproportionately large down payments for auctions of
particularly capital-intensive services. In addition, Airadigm states
that granting the Bureau this discretion could complicate applicants'
financing arrangements because down payment amounts could vary with
each auction. After consideration of these comments, the Commission
concludes that a standard down payment amount of 20 percent is
appropriate. Finally, if unusual circumstances present themselves in
the context of a particular service, the Commission reserves the right
to adopt a different amount by rule in that service.
Untimely Second Down Payments and Full Payments
67. The Commission will amend sections 1.2109(a) and 1.2110(e) of
its rules to permit auction winners to make their second down payments
or final payments within ten business days after the applicable
deadline, provided that they also pay an appropriate late fee, without
being considered in default. As the Commission recognizes in the
Notice, in past auctions there have been cases where a winning bidder
missed the applicable second down payment deadline but subsequently
made its down payment and filed a request seeking a waiver of the
deadline. In some of these cases, the Bureau granted the waivers,
subject to payment of a five percent late fee. In granting the waivers,
the Bureau recognized the licensee's good faith and ability to pay as
evidenced by its timely remittance of all earlier payments and prompt
action to cure the delinquency.
68. The Commission recognizes that applicants may encounter
unexpected or unforeseeable difficulties when trying to arrange
financing and make substantial payments under strict deadlines. In
circumstances that may warrant favorable consideration of a waiver
request or an extension of the payment date, the Commission must also
evaluate the fairness to other licensees who made their payments in a
timely fashion. Two commenters, Mountain Solutions, Ltd. (``Mountain
Solutions'') and AirTouch, the only commenters to address this issue in
detail, support our proposal to permit late payment subject to a
standard late fee for any licensee not able to make a timely payment.
The Commission agrees, and amends Sec. 1.2109(a) to permit winning
bidders who are required to make final payment on their licenses within
a certain period of time as announced by public notice, to submit their
payment 10 business days after the payment deadline, provided that they
also pay a late fee equal to five percent of the amount due. Although
the Commission suspends the use of installment payments for the
immediate future, in the event the Commission once again offers
installment payments, the Commission will also amend Sec. 1.2110(e) to
permit auction winners paying for the licenses in installments to
submit their second down payment 10 business days after the payment
deadline, provided they also pay a late fee equal to five percent of
the amount due.
69. As discussed above, the Commission's rules provide that winning
bidders have ten business days to make timely payment following
notification that their licenses are ready to be granted. The
Commission believes that in establishing this additional ten business
day period, during which winning bidders will not be considered in
default, the Commission will provide an adequate amount of time to
permit winning bidders to adjust for any last-minute problems. The
Commission declines to provide for a lengthier late payment period
because we believe that extensive relief from initial payment
obligations could threaten the integrity, fairness, and efficiency of
the auction process. As observed in the Notice, a late fee of five
percent is consistent with general commercial practice and provides
some recompense to the federal government for the delay and
administrative or other costs incurred. In addition, we believe that a
five percent fee is large enough to deter winning bidders from making
late payments and yet small enough so as not to be punitive. Therefore,
applicants who do not submit the required final payment and five
percent late fee within the 10-day late payment period will be declared
in default, and will be subject to the default payment specified in
Sec. 1.2104(g) of our rules. 47 CFR 1.2104(g).
70. Finally, the Commission emphasizes that its decision to permit
late payments is limited to payments owed by winning bidders who have
submitted timely initial down payments. The Commission continues to
believe that the strict enforcement of payment deadlines enhances the
integrity of the auction and licensing process by ensuring that
applicants have the necessary financial qualifications. In this
connection, the Commission believes that the bona fide ability to pay
demonstrated by a timely initial down payment is essential to a fair
and efficient auction process. Thus, the Commission has not proposed to
modify its approach of requiring timely submission of initial down
payments that immediately follow the close of an auction. The
Commission did not propose to adopt a late payment period for down
payments that are due soon after the close of the auction as the
Commission believes it is reasonable to expect that winning bidders
timely remit their down payments, given that it is their first
opportunity to demonstrate to the Commission their ability to make
payments toward their licenses. Further, if a winning bidder defaults
on its down payment on a license, the Commission can take action under
Sec. 1.2109(b) relatively soon after the auction has closed, by, for
example, re-auctioning the license or offering it to the other highest
bidders (in descending order) at their final bids. Similarly, the
Commission will not allow for any late submission of upfront payments,
as to do so would slow down the licensing process by delaying the start
of an auction.
Full Payment and Petitions To Deny
71. The Commission will suspend the use of installment payments as
a means
[[Page 2327]]
of financing small business participation in our auction program for
the immediate future. As a result, all auction winners, including small
businesses, will be required to submit the full payment owed on their
winning bids shortly after a license is ready to be granted. The
Commission will recognize that in the past the filing of petitions to
deny against a winning bidder's application(s) has often had the effect
of significantly delaying the grant of the applicant's license(s), and
as a result, the deadline for that applicant to submit the balance of
its winning bid. However, in the Balanced Budget Act Congress granted
the Commission the authority to shorten the petition to deny period,
and as a result, to grant licenses much more rapidly. Balanced Budget
Act, Sec. 3008. As an initial matter, consistent with this legislation,
the Commission amends Secs. 1.2108(b) and (c) of its rules to provide
that the Commission shall not grant a license earlier than seven days
following issuance of a public notice by the Commission that long-form
applications have been accepted for filing. 47 CFR 1.2108(b), (c). Also
consistent with the Balanced Budget Act, the Commission amends this
section to provide that in all cases the period for filing petitions to
deny shall be no shorter than five days. In this regard, the Commission
seeks comment in the Second Further Notice of Proposed Rule Making on
whether there are instances in which the Commission should provide for
a longer period for the filing of petitions to deny or for the grant of
initial licenses in auctionable services.
72. In light of this change in our rules, the Commission believes
that the concerns discussed in the Notice regarding delays in the
granting of licenses and, as a result, in the deadline for full payment
are substantially reduced. While applications that are the subject of
petitions to deny ordinarily take longer to resolve than uncontested
applications, the Commission believes these changes in procedure will
reduce the risk of frivolous petitions being filed solely for purposes
of delay, and will enhance our ability to resolve petitions
expeditiously. Finally, the Commission believes that concerns regarding
delayed payment are outweighed by the risk and uncertainty that would
be imposed on an applicant if it were required to make its full auction
payment while a petition against its application was still pending and
could potentially result in denial of the application. As a result, the
Commission declines to amend its rules to require all winning bidders
to make their full payments at the same time, regardless of whether
petitions to deny their applications have been filed.
73. Default Payments. The Commission adopts its proposal to delete
the words ``simultaneous multiple-round'' from Sec. 1.2104(g), and will
apply the default/withdrawal payment procedure to all auction designs.
Several commenters support this decision, maintaining that rigorous
enforcement of the Commission's payment deadlines is critical to
preserving the integrity of the auction and licensing process by
ensuring that applicants possess the necessary financial
qualifications. These commenters also suggest that default payments are
an effective and necessary method of discouraging defaults and
encouraging private market solutions to licensee financing
difficulties. The Commission believes that this modification to our
general rules governing bidder default will help to maintain the
integrity of the auction process by discouraging defaults on the part
of bidders, encouraging bidders to make secondary or back-up financial
arrangements, and ensuring that default payments are made in a timely
manner. The Commission also believes this modification will help to
discourage insincere bidding and ensure that licenses end up in the
hands of those parties that value them the most and have the financial
qualifications necessary to construct operational systems and provide
service. See 47 U.S.C. 309(j)(5).
74. Our rules provide that where a winning bidder defaults on a
license, the bidder becomes subject to a default payment equal to the
difference between the amount bid and the winning bid the next time the
license is offered by the Commission, plus a payment equal to three
percent of the subsequent winning bid or the amount bid, whichever is
lower. See 47 CFR 1.2104(g)(2). In the Competitive Bidding Fifth Report
and Order, the Commission stated that where the default payment cannot
be determined, the Commission may assess an initial default payment
``of up to 20 percent'' of the defaulting bidder's winning bid. We
adopt our proposal in the Notice to employ this practice for all
auctionable services. No commenter addressed this issue. Although the
Commission provided that this deposit amount will be up to 20 percent
of the defaulted bid amount, we note that if a license is reauctioned
for an amount greater than the defaulted bid for the license, the
default payment due will be only three percent of the defaulted bid. 47
CFR 24.704(a)(2). See also 47 CFR 1.2104(g). Thus, in the future we
will assess an initial default deposit of between three percent (3%)
and twenty percent (20%) of the defaulted bid amount where a winning
bidder or licensee defaults and the defaulted license has yet to be
reauctioned. Once the license has been reauctioned by the Commission
and the total default payment can be determined, the Commission will
either assess the balance of the appropriate default payment, or refund
any amounts due, as necessary.
75. Installment Payments
Late Payments
76. In order to add certainty to the installment payment process,
the Commission adopts its proposals from the Notice to modify its grace
period provisions. As discussed above, the Commission declines to use
installment payments for the immediate future as a means of financing
small business participation in our auction program. As a result, the
Commission's decision with regard to late payment fees for installment
payments effectively will apply only to existing licensees who are
currently paying for their licenses in installments. From this point
forward, instead of considering individual grace period requests, the
following system will apply: A licensee who does not make payment on an
installment obligation will automatically have an additional 90 days in
which to submit its required payment without being considered
delinquent, but will be assessed a five percent late payment fee as
discussed above. If the licensee fails to make the required payment at
the close of this first 90-day non-delinquency period, the licensee
will automatically be provided a subsequent 90-day grace period, this
time subject to a second, additional late fee equal to ten percent of
the initial required payment.
77. As proposed in the Notice, under this system, licensees will
not be required to submit a filing to take advantage of these
provisions. During this 90-to-180-day period, the Commission or its
designated collection agent will continue to pursue collection of past-
due installments and fees. Also during this time, the licensee will
have the opportunity to raise necessary capital, continue service and
construction efforts, or seek a buyer for its license(s) that will
resume payments. These late payment provisions will apply independently
to all installment payments. Therefore, the late payment provisions and
accompanying late fees will not affect the payment schedule for future
payments. Thus, even if a licensee elects to take advantage of the late
payment provisions, the licensee
[[Page 2328]]
will still be responsible for remitting all future installment payments
in a timely manner, unless the licensee elects to take advantage of the
late payment provisions for any future installment payment. The
following example illustrates how this system will operate:
ABC Corp. has a $100,000 installment interest payment due on
March 1. If ABC Corp. is able to make its payment on March 1, then
it must remit $100,000 to the Commission. If ABC Corp. makes its
payment anytime from March 2 until May 30 (the end of the non-
delinquency period), then ABC Corp. must remit $105,000 to the
Commission to be considered current on its March 1 installment
payment. If ABC Corp. does not make its March 1 payment by May 30,
then it must remit $115,000 on or before August 28. If ABC Corp.
does not remit the required $115,000 by August 29 (the end of the
90-day grace period), then it will be considered in default and its
license will automatically cancel on August 30 without further
action by the Commission. See 47 CFR 1.2110(e)(4)(iii).
ABC Company's June 1 installment payment of $100,000 remains due on
June 1 regardless of the payment status of the March 1 payment. The
late payment terms apply to June installment payment independently of
the March payment. Thus, if ABC Company does not make its March 1
payment until June 1, the total amount due to the Commission on June 1
is $215,000 which consists of the March payment, the March 5% non-
delinquency late fee, the March 10% grace period late fee and the June
payment. Assuming the licensee remits the March 1 payment and
accompanying March late fees of $115,000 to the Commission by August
29, then the total amount due to the Commission on September 1 will be
$215,000 which consists of the June installment payment of $100,000,
the June 5% non-delinquency late fee, the June 10% grace period late
fee and September installment payment of $100,000.
ABC Company may elect to make late payments and pay the
accompanying late fees on the March and June payments. However, ABC
Company must remit $115,00 representing the required March payment and
accompanying March late fees by August 29 (the end of March's 90-day
grace period) or it will be considered in default and its license will
automatically cancel on August 30 without further action by the
Commission. Furthermore, ABC Company must remit and additional $115,000
representing the required June payment and accompanying June late fees
by November 29 (the end of June's 90-day grace period) or it will be
considered in default and its license will automatically cancel on
November 30 without further action by the Commission.
As proposed in the Notice, the late fees the Commission adopts will
accrue on the next business day following the payment due date and will
be payable with the next quarterly installment payment obligation. The
Commission emphasizes that at the close of non-delinquency or grace
period, a licensee must submit the required late fee(s), all interest
accrued during the non-delinquency period, and the appropriate
scheduled payment with the first payment made following the conclusion
of the non-delinquency period or grace period. Payments made at the
close of any grace period will first be applied to satisfy any lender
advances as required under each licensee's ``Note and Security
Agreement.'' Afterwards, payments will be applied in the following
order: late charges, interest charges, principal payments. As part of
the Commission's spectrum management responsibilities, the Commission
wishes to ensure that spectrum is put to use as soon as possible. The
Commission also believes that licensees should be working to obtain the
funds necessary to meet their payment obligations before they are due
and, accordingly, that the non-delinquency and grace periods the
Commission adopts should be used only in extraordinary circumstances.
Thus, as the Commission emphasized in the Notice, a licensee who fails
to make payment within 180 days sufficient to pay the late fees,
interest, and principal, will be deemed to have failed to make full
payment on its obligation and will be subject to license cancellation
pursuant to Sec. 1.2104(g)(2) of the Commission's rules.
78. Several commenters support the Commission's efforts to provide
licensees with predetermined non-delinquency periods without requiring
the submission of a formal grace period request. In addition, many of
the commenters addressing this issue, including AMTA, Hughes, AirTouch,
Mountain Solutions and CII support the imposition of a late payment fee
similar to that imposed in the broadband F block auction, in order to
create a significant incentive for timely payment of installment
obligations. CII believes that modifying our current grace period
procedures will provide licensees with knowledge in advance of the
extent of any relief that will be forthcoming from the Commission to a
licensee who misses an installment payment. AirTouch believes that any
licensee who fails to make payment within 180 days should face the
automatic cancellation of its license. AirTouch contends that once a
certain number of installment payments have been submitted late, the
Commission should declare the licensee in default and subject to the
default payments proposed in the Notice. In contrast, only CIRI opposes
this liberalization of the current grace period rules, requesting
instead that grace period relief be made available only when a licensee
can demonstrate that such relief is warranted and the public debt will
ultimately be satisfied. Although Hughes recommends the imposition of a
``significant'' late fee to the extent that an applicant misses a
payment deadline, Hughes believes that a five to ten percent late fee
is large enough to discourage late payments and to ensure that the
government is compensated for its administrative expenses in recouping
the payment. As an alternative to our proposal in the Notice, GWI
proposes that any such late payment fee should be pro-rated over the
90-day payment period instead of accruing all at once regardless of
when the late payment is made, in order to provide an economic
incentive for licensees who are overdue in their payment obligations to
retire the payment quickly instead of waiting until the end of the
payment period. In addition, GWI suggests that such a pro-rated payment
is fairer to licensees who inadvertently miss a required payment
through administrative error or other unavoidable, unforeseen
circumstances.
79. As an alternative to the Commission's proposals in the Notice,
Airadigm contends that following the first 90-day non-delinquency
period, licensees should be given a second 90-day period with a five
percent late fee, followed by a third 90-day grace period with a 10
percent late fee. ISTA believes that a rule whereby any license is
cancelled at the close of the second 90-day grace period is draconian,
and that such a ``hard-and-fast'' automatic cancellation rule would
doom many small businesses. GWI opposes the imposition of an additional
10 percent late payment fee where licensees require an additional 90-
day late payment period. The Commission declines to adopt these
alternate proposals. As the Commission indicated in the Notice, the
grant of a grace period is an extraordinary remedy and we wish to
encourage licensees to seek private market solutions to their capital
problems before the payment due date. In this regard, the Commission
notes that it has an obligation under the Debt Collection Improvement
Act to enforce payment obligations owed to the federal
[[Page 2329]]
government. See Debt Collection Improvement Act, Pub. L. 104-134,
Sec. 3100(j)(i), 110 Stat. 1321 (1996), codified at 31 U.S.C. 3711(a)
(``DCIA'').
80. The Commission believes that the automatic grace period
provisions we adopt today provide licensees with adequate financial
incentives to make installment payments on time, while at the same time
creating increased certainty that will help licensees pursue private
market solutions to their financing difficulties. These provisions also
will discourage licensees from attempting to maximize their cash flow
at the government's expense by submitting a required installment
payment after it is due. Several commenters agree with this assessment.
At the same time, these provisions will eliminate uncertainty for many
licensees who are seeking to restructure other debt contingent upon the
results of the Commission's installment payment provisions. In
addition, this system will ease the burden on the Commission of
considering individual grace period requests where Commission or its
designee may not have the necessary resources to evaluate a licensee's
financial condition, business plans, and capital structure proposals.
The Commission recognizes that some commenters oppose the imposition of
a late fee on overdue installment payment, and in particular on the 90-
day non-delinquency period. However, this approach is consistent with
the standard commercial practice of establishing late payment fees and
developing financial incentives for licensees to resolve capital issues
before payment due dates. This approach also is consistent with the
provisions of the DCIA, which requires that the Commission notify the
Secretary of the Treasury and commence debt collection procedures where
a party is more than 180 days past due on any outstanding debt owed to
a federal agency. See 31 CFR 3711(g)(1).
81. The Commission recognizes that a number of commenters oppose
the application of these provisions to current licensees. In
particular, GWI and IVDS Enterprises argue that to the extent the
Commission adopts a late payment fee, it should limit the imposition of
such a fee to licenses issued in future auctions. However, the
Commission's recent experience with the installment payment program has
shown the importance of ensuring that all licensees, including current
licensees, have adequate financial incentives to make installment
payments on time. The Commission notes that in awarding licenses in the
past to entities choosing to pay in installments, the Commission has
emphasized that the terms of the installment payment program will be
governed by current Commission rules and regulations, as amended. For
example, in awarding licenses to C block licensees paying for their
licenses in installments, the Commission indicated in the associated
``Note and Security Agreement'' that the terms of the installment plan
would be governed by and construed in accordance with then-applicable
Commission orders and regulations, as amended. The Commission also
believes that these licensees should obtain the benefit of increased
certainty that provisions for automatic grace periods provide. This
decision is supported by Mountain Solutions, who requests that current
licensees obtain the benefits of any loosening of the late payment fee
and grace period rules.
82. As provided in the Second Report and Order and Further Notice
of Proposed Rule Making in this docket, installment payments for C and
F block licensees will resume effective March 31, 1998. See 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. 97-82
62 FR 55348 (October 24, 1997) (``Second Report and Order and Further
Notice of Proposed Rule Making''). Under the Commission's decision to
reinstate installment payments for these licensees, the Commission
provided them with one automatic 60-day non-delinquency period
following the March 31, 1998, deadline, during which time they will not
be considered delinquent in their payment obligations. As the
Commission indicated in the Second Report and Order and Further Notice
of Proposed Rule Making, the Commission will not entertain any requests
for extension of the March 31, 1998 deadline beyond an automatic 60-day
non-delinquency period, so that for C and F block licensees all
required payments must be submitted no later than May 30, 1998. Only
those licensees making a timely payment of all amounts due, as set
forth in the Second Report and Order will be permitted to take
advantage of the late payment provisions the Commission adopts today.
See 47 CFR 1.2110.
83. In commenting on these modifications to the grace period
provisions, CIRI also proposes that the Commission make public the
terms of any workouts or debt relief provided to licensees. CIRI notes
that parties may request confidential treatment of sensitive financial
information pursuant to Sec. 0.459 of the Commission's rules, and that
such confidential treatment should be sufficient to safeguard the
privacy interests of licensees, while still making the terms of any
workout available for public scrutiny. As an initial matter, because
the Commission adopts its proposals providing for automatic grace
periods, the Commission does not envision licensees filing grace period
requests under normal circumstances from this point forward. As a
result, the Commission believes that CIRI's concerns about the
Commission making public a licensee's request for grace period relief
are moot. Moreover, because from this point forward a licensee's taking
advantage of our late payment provisions will be an administrative
matter processed by the Commission's loan servicer, and not a formal
waiver request, aside from instances where a licensee is declared in
default, there will be no public notice of a licensee's payment status.
The license is cancelled automatically under such circumstances. In
contrast, for licensees who have previously filed grace period requests
consistent with the Commission's current rules and procedures, the
Commission will continue its current practice of making the request
public when a decision is released granting or denying the request,
except to the extent that any request by the licensee for confidential
treatment is granted pursuant to Sec. 0.459 of the Commission's rules.
See 47 CFR 0.459. The Commission further clarifies that such licensees
are not deemed to be in default on these licenses until such time as
the Bureau issues a decision on these grace period requests. Licensees
whose requests for a grace period are denied will have ten (10)
business days to make the required payment or be considered in default.
Defaults on Installment Payments
84. The Commission will not adopt its tentative conclusion to apply
the default provisions of Sec. 1.2104(g) to licensees who default on an
installment payment. Most commenters addressing the issue oppose this
proposal. For example, Pocket submits that default payments assessed
later in the license term become highly arbitrary and unduly
burdensome. Pocket also contends that such payments are greater than
those traditionally required for secured creditors and create
substantial disincentives for investors and creditors who might
otherwise be interested in providing financing for licensees. Pocket
also notes that any default payment assessed disadvantages a licensee's
other creditors, which also makes it more difficult for licensees to
[[Page 2330]]
raise capital. Finally, Pocket states that default payments assessed
later in the license term have no deterrent effect as there is no basis
to believe that licensees that have paid substantial sums to the
Treasury will willingly default. In contrast, AirTouch supports our
tentative conclusion that licensees that ultimately fail to fulfill
their installment payment obligations despite the availability of a 90-
day non-delinquency period and a subsequent, automatic 90-day grace
period, should be declared in default, and in turn be made subject to
the default payments proposed in the Notice.
85. The Commission has considered the comments of those who oppose
the proposed assessment, and find that an additional payment
requirement for licensees defaulting on installments is not necessary
to achieve our stated objectives. The Commission's current rules and
installment payment terms are adequate to discourage defaults and
encourage licensees to find private market solutions when they face
financial difficulties. The Commission also believes that the rules it
adopts providing for a 90-day non-delinquency period followed by a
subsequent, automatic 90-day grace period, subject to appropriate late
fees of five percent for the 90-day non-delinquency period and 10% for
automatic 90-day grace period, payable at the conclusion of these
periods serve these goals without substantially risking delays or
disruption in service to the public. In particular, the Commission
believes that this certainty regarding the Commission's treatment of
licensees needing extra time to make their installment payments will
increase the likelihood that licensees and potential investors will
find solutions to capital problems before a default occurs. The risk of
losing its license should provide a licensee a strong incentive to
avoid default. If, however, a default does occur, the conditions on the
face of each license and the terms of the notes and security agreements
executed by licensees provide the Commission appropriate remedies that
will ensure that defaulted licenses are returned to the Commission for
reauction and that all outstanding debts, as well as the Commission's
costs, are recoverable.
Cross Default in the Context of Installment Payments
86. After consideration of the comments in this proceeding, The
Commission concludes that it will not pursue a policy of cross default
(either within or across services) where licensees default on an
installment payment. Because the Commission will eliminate the use of
installment payments as a means of financing small business
participation in its auction program for the foreseeable future, the
Commission notes that in practice this decision will apply only to
existing licensees who are currently paying for their licenses in
installments.
87. The Commission's decision not to pursue cross default remedies
against current licensees who default on an installment payment is
supported by the majority of commenters. For example, Airadigm contends
that it is unfair to jeopardize an entire business because of a default
on one license. Similarly, ISTA argues for separate treatment of
separate services, regardless of ownership, lest a failure in one
business cause failure in unrelated businesses. IVDS Enterprises
proposes that licensees be able to discontinue installment payments on
a particular license and allow that license to be cancelled or revoked.
IVDS Enterprises believes that such a decision should not affect the
licensee's other licenses, whether in the same or other services, where
the licensee has made timely installment payments. Alternatively,
Pocket believes that the Commission should reserve the authority to
impose cross defaults on a case-by-case basis only for licensees that
have demonstrated bad faith.
88. The Commission recognizes that some commenters strongly
advocate a policy of cross defaults in this context. These commenters
suggest that such a policy (1) prevents speculation during the auction
and cherry-picking (e.g., selectively defaulting on some licenses while
keeping others) after the auction concludes, (2) encourages auction
participants to find private market solutions to financial shortfalls,
and (3) is consistent with commercial lending policies. The Commission
believes, however, that the default provisions contained in
Sec. 1.2104(g)(2) serve as an adequate incentive to discourage
speculation and encourage licensees to pursue non-default solutions to
financial difficulties. The Commission also emphasizes that our
decision on this matter only addresses default in the context of
installment payments, and does not affect our policy with regard to
defaults on down payments. In addition, by making licensees who default
on an installment payment subject to the default payment set forth in
Sec. 1.2104(g)(2), the Commission created an additional deterrent to
licensees considering default as a solution to financing shortfalls.
The Commission believes that this policy will promote the goals of
section 309(j) by not punishing otherwise successful licensees for
failures in one market, and will strike an appropriate balance between
our conflicting roles as both ``lender'' and ``regulator.''
Accordingly, upon default on an installment payment, a license will
automatically cancel without further action by the Commission, the
licensee will become subject to the default payment set forth in
Sec. 1.2104(g) of our rules, and the Commission will initiate debt
collection procedures against the licensee and accountable affiliates.
47 CFR 1.2104(g), 1.2110(e)(4)(iii). See also 31 U.S.C. Chapter 37; 4
CFR Parts 101-105; 47 CFR Part 1, Subpart O.
VI. Competitive Bidding Design, Procedure, and Timing Issues
89. Balanced Budget Act of 1997 Notice and Comment Procedures. The
Commission believes that in the past our service-specific rule making
process has served the purpose of adequately ensuring that interested
parties have sufficient time to familiarize themselves with the rules
and procedures to be employed in an auction prior to the application
deadlines and start date of that auction. The Commission nevertheless
believes that this legislation requires that the Commission provide an
additional opportunity for input from potential bidders prior to the
issuance of detailed auction-specific information by the Bureau. To
date, the Bureau has served as the primary point of contact with
potential bidders and other parties interested in issues relating to
each upcoming auction, and this has worked well. In light of the
typically time-sensitive nature of most issues arising in the weeks
prior to the start of an auction, the Bureau has been equipped to make
determinations and respond rapidly to potential bidders' concerns.
Consistent with the provisions of the Balanced Budget Act, and to
ensure that potential bidders have adequate time to familiarize
themselves with the specific provisions that will govern the day-to-day
conduct of an auction, the Commission directs the Bureau, under its
existing delegated authority, see 47 CFR 0.131(c), 0.331, 0.332, to
seek comment on a variety of auction-specific issues prior to the start
of each auction.
90. The Commission directs the Bureau to seek comment on specific
mechanisms relating to day-to-day auction conduct including, for
example, the structure of bidding rounds and stages, establishment of
minimum opening bids or reserve prices, minimum acceptable bids,
initial maximum eligibility for each bidder, activity requirements for
each stage of the auction, activity rule waivers, criteria for
determining reductions in
[[Page 2331]]
eligibility, information regarding bid withdrawal and bid removal,
stopping rules, and information relating to auction delay, suspension,
or cancellation. The Commission directs the Bureau to afford interested
parties a reasonable time, in light of the start date of each auction
and relevant pre-auction filing deadlines, to comment on auction-
specific issues. In this regard, the Commission notes that it has been
the Bureau's practice to release the public notice providing details
concerning each upcoming auction sufficiently in advance of the short-
form filing deadline (e.g., 30 days prior to the deadline) to provide
interested parties with an opportunity to develop business plans,
assess market conditions and evaluate the availability of equipment.
Also consistent with previous practice, the Commission recognizes that
the Bureau needs the flexibility to announce, at any time in the weeks
leading up to the start date of each auction, any minor, non-
substantive amendments or clarifications to the specific mechanisms set
forth in auction-related public notices or the Bidder Information
Package. The Commission believes that this process is consistent with
the requirements of section 3002(a)(1)(B)(iv) of the Balanced Budget
Act, and will afford potential bidders adequate notice, as well as an
opportunity to comment on the Bureau's intentions regarding issues
relating to the day-to-day conduct of each auction.
91. ``Real time'' Bidding. The Commission will adopt its proposal
in the Notice to allow for ``real time'' bidding as an alternate design
methodology in our rules. After careful consideration of the comments
received in this proceeding, as well as its experience in conducting 15
auctions to date, the Commission concludes that ``real time'' bidding
will allow auctions to proceed more rapidly because it will allow
bidders immediate feedback on new high bids. The Commission also notes
that in an effort to simplify the auction process and prevent
``gaming'' of bids, the Commission has recently modified its electronic
bidding process by implementing ``click-box bidding.'' This feature,
which replaces the field where bidders previously typed their dollar
bid amount with a ``click on check box to bid'' field (where the only
bid amount allowed is at the minimum acceptable bid) no longer allows
bidders to type a bid amount on the Bid Submission screen. As such,
``click-box bidding'' can work well in a ``real-time'' bidding context
because bidders can more rapidly respond to the bids of other bidders,
permitting an auction to progress more rapidly and efficiently. The
Commission has successfully employed click box bidding in the recently
completed 800 MHz SMR auction, and plans to employ it in the
forthcoming LMDS auction.
92. The Commission delegates to the Bureau the authority to
determine whether the public interest will be served by ``real time''
bidding in a particular auction. Most commenters oppose the use of
``real time'' bidding, arguing it may be difficult for bidders to react
quickly enough to ensure that in each bidding round they make new high
bids on the necessary percentage of their bidding eligibility to meet
their activity requirement. These commenters also believe that the
somewhat accelerated pace of ``real time'' bidding may leave less time
to craft informed bidding strategies during the auction.
93. As mentioned above, the ``click-box bidding'' format should
significantly improve a bidder's ability to react quickly. Further,
should the Commission determine to employ ``real-time'' bidding in the
future, the Commission believes that the issues involving meeting
activity requirements will be alleviated by our proposal in the Notice
to open a discrete closed bidding period after each fixed period of
``real time'' bidding (when only standing high bids from the previous
round and new high bids from the current round count in determining the
bidder's activity level). During this closed bidding period, bidders
will be able to submit valid bids (bids that meet or exceed the minimum
accepted bid) to ensure that they have the opportunity to meet their
activity requirements for the round. Following the discrete closed
bidding period, the Commission will post the final round results for
the period and make all bids available to the public. This discrete
period should help to eliminate any risks of not meeting eligibility
requirements or having time to formulate bidding strategies which
commenters suggest may be associated with ``real time'' electronic
bidding. In particular, this period will help to provide bidders
sufficient time to meet eligibility requirements and will minimize the
risks, suggested by some commenters, of the submission of erroneous
bids.
94. One of the greatest advantages to ``real time'' bidding is that
it allows bidders to obtain immediate feedback on new high bids,
withdrawn high bids and minimum accepted bids, and thereby provides
them with the opportunity to immediately respond to this information
and move licenses toward their final valuations more quickly. The
Commission believes that, particularly in the case of complex auctions
of multiple licenses, it is one means of helping auctions to progress
more efficiently. Under the current simultaneous multiple-round auction
rules, each round of bidding contains a discrete bidding period during
which bidders cannot see the actions of other bidders. Bidders must
wait until the end of each round to see the bids placed by other
bidders and determine their status as high bidder. In contrast, an
open, continuous bidding round--in which bidders know when their bid
has been exceeded and are free to bid again--can be used to reduce the
delay inherent in the current design where a bidder must wait until the
next discrete round to react to the actions of other bidders.
95. The Commission notes that some commenters express concern that
the widespread use of ``real time'' bidding would increase the
administrative costs of participating in the auction due to the
incentive to stay on-line during the continuous bidding period and
thereby work to exclude smaller entities that may lack the resources to
devote to a concentrated bidding period or to stay on-line during the
entire bidding period. The Commission agrees with commenters that under
some circumstances the costs of participating in an auction in which
bidders are required to be ``on-line'' may discourage the participation
of small businesses. The Commission therefore concludes that the per
minute charge for bidding ``on-line'' should be reexamined, and
delegate to the Bureau that authority to implement such a reduced fee
in the future, if appropriate.
96. No commenters addressed the Commission's tentative conclusion
in that Notice that because ``real time'' auctions are a variation of
the simultaneous multiple-round auction design established in our
rules, many of the same procedures (i.e., upfront payments to determine
eligibility, activity requirements that apply to each round, minimum
bid increments, and a stopping rule) should apply. These procedures
have proven workable and easily understood by bidders in the context of
our simultaneous multiple-round auction design, but some modifications
to these procedures may be necessary if the Commission employs ``real
time'' bidding. The Commission concludes that the Bureau should
undertake this task.
97. Consistent with section 3002 of the Balanced Budget Act, the
Commission directs the Bureau to seek comment from the public on
auction-specific issues (i.e., duration of bidding rounds and activity
requirements) prior to the start of each auction. The
[[Page 2332]]
Commission believes that this practice of seeking comment on such
issues prior to the start of each auction will adequately address any
additional concerns associated with the use of ``real time'' bidding.
The Commission also notes that it seeks, on an ongoing basis, to
enhance and improve our bidding processes. The Commission believes that
the Bureau should explore ``real time'' bidding consistent with the
requirement under section 309(j) that the Commission experiment with
different bidding methodologies. See 47 U.S.C. 309(j)(3).
98. Combinatorial Bidding. The Commission did not specifically seek
comment in the Notice on the use of combinatorial bidding as an auction
design methodology. The Commission's current Part 1 rules already
provide for the use of combinatorial bidding as one of our competitive
bidding design options. See 47 CFR 1.2103(b). In addition, the
Commission was directed by Congress in the Balanced Budget Act of 1997
to consider the use of combinatorial bidding as an alternative auction
design that could be used, in certain instances, as a means of speeding
the auction process. Specifically, the Balanced Budget Act requires the
Commission, for testing purposes, to design and conduct an auction in
which a system of combinatorial bidding is used. Balanced Budget Act;
47 U.S.C. 309(j)(3)(i).
99. The Commission has insufficient information to determine how
this relatively new bidding methodology might be used to improve our
spectrum auction program. The Commission will seek comment on a number
of issues relating to combinatorial bidding, and will more thoroughly
address this issue once the record is complete. The Commission has also
awarded a research and development contract to a private sector
consultant to examine theoretical and applied combinatorial bidding
approaches where licenses exhibit strong synergies and bidders have
overlapping preferences (i.e., prefer different packages of licenses).
The contractor will also evaluate the most appropriate of the
theoretical and applied approaches to combinatorial bidding for
spectrum auctions and address a number of concerns raised by the
Commission and other interested parties. The Commission's goal in
awarding the contract is to allow private sector and government auction
experts to address these concerns and investigate the possible effects
of the use of combinatorial bidding on the auction process, including
the Commission's fulfillment of the objectives of Section 309(j) of the
Communications Act.
100. Minimum Opening Bids and Reserve Prices. Several commenters
oppose the use of minimum opening bids. However, the Balanced Budget
Act establishes a presumption in favor of a required minimum opening
bid or reserve price. Balanced Budget Act, section 3002(a)(1)(C)(iii).
The Commission therefore adopts its proposal in the Notice to delete
the term ``suggested'' from Sec. 1.2104(d). The Commission also
clarifies that the Bureau has the authority to seek comment on minimum
opening bids and reserve prices and to establish such mechanisms for
each auction, consistent with its role in managing the auction process
and setting valuations for other purposes (e.g., setting upfront
payment amounts). The Bureau shall establish a minimum opening bid and/
or reserve price for each auction, unless, after comment is sought
prior to a particular auction, it is determined that a minimum opening
bid or reserve price would not be in the public interest.
101. The terms ``minimum opening bid'' and ``reserve price'' are
traditionally different, and are employed for different purposes. A
reserve price is defined as an absolute minimum price below which an
auctioneer will not sell an object being auctioned. It may be disclosed
to bidders before an auction or during an auction, or it may be kept
secret, so that a ``winning'' bidder does not actually find out if the
object has been won until after the auction has closed. Auctioneers
generally employ reserve prices to order to maximize the revenue earned
from an auction. A minimum bid is a minimum value below which bids will
not be accepted in the first round of an auction. The level of a
minimum opening bid is not unchangeable like a reserve price, but may
be reduced at the discretion of the auctioneer if no bids are made at
the existing level. The primary purpose of a minimum opening bid is to
speed up the course of an auction. However, a minimum bid also can
serve as a revenue-enhancing function like a reserve price, because if
bids will not be accepted below a certain level, they will also not be
sold below that level. That is, a minimum opening bid effectively
functions as a reserve price unless or until it is reduced. Regarding
the level of reserves or minimum bids, the Commission does not believe
that the Balanced Budget Act provision means that it should now be
attempting to maximize the revenue earned in all future spectrum
license auctions. The other auction goals in the Act, such as ensuring
the deployment and rapid deployment of new technologies and services
and promoting economic opportunity and competition (see 47 U.S.C.
309(j)(3)) have not been eliminated, and the Commission must continue
to balance and pursue them all. Therefore, the Commission concludes
that the new provision does not call for traditional reserve prices.
Rather, it calls for an added protection that licenses will not be
assigned at unacceptably low prices.
102. The Commission believes that the Bureau should have the
discretion to employ either or both of these mechanisms for future
auctions. The Commission directs the Bureau to seek comment on the use
of a minimum opening bid and/or reserve price, as it will do for a
variety of auction-specific issues, prior to each auction. In addition,
the Bureau should seek comment on the methodology to be employed in
establishing each of these mechanisms. Among other factors, the Bureau
should consider the amount of spectrum being auctioned, levels of
incumbency, the availability of technology to provide service, the size
of the geographic service areas, issues of interference with other
spectrum bands, and any other relevant factors that could reasonably
have an impact on valuation of the spectrum being auctioned.
103. Maximum Bid Increments. Several commenters suggest that jump
bidding is not a problem of serious concern. Some theoretical
literature, however, suggests that bidders could use jump bidding to
manipulate the auction process and potentially reduce efficiency of the
auction. For example, a general principle of auction theory is that the
auction mechanisms that perform the best are those which are able to
induce bidders to reveal the most information. To the extent that jump
bids enable bidders to conceal information, the phenomenon moves us
away from the informational advantages of an ascending bid (multiple
round) auction in the direction of a first-price sealed bid (single
round) auction. As ISTA recognizes, jump bidding can complicate bidding
strategy and deny bidders information about the number of bidders who
would be willing to pay prices between the minimum acceptable bid and
the jump bid. In the absence of information about the bidders who would
be willing to participate at intermediate bids, other bidders may feel
compelled to shade their bids more than they would otherwise. This
behavior is an attempt to avoid the ``winner's curse,'' that is, the
tendency for the winner to be the bidder who most overestimates the
value of the item being auctioned.
[[Page 2333]]
104. As an initial matter, the Commission notes that recent changes
designed to improve the Commission's electronic auction bidding process
eliminate the dangers that a maximum bid increment is designed to avoid
(e.g., jump bidding). In an effort to speed the auction process and
eliminate unwarranted ``gaming'' of our processes, the Commission has
simplified the electronic auction bidding process by implementing
``click-box bidding.'' As discussed above, this feature permits bidders
to enter a bid only at the maximum bid increment as determined by the
Commission, and thus makes bidding tactics such as jump bidding
impossible. Nevertheless, the Commission will reserve the discretion to
employ a maximum bid increment should it return to an auction format in
which jump bidding can in any way decrease the competitiveness of an
auction. In this regard, the Commission disagrees with NextWave's
suggestion that by disallowing jump bids as one method by which bidders
may obtain information about each other the Commission risks prolonging
an auction. On the contrary, the Commission has alternate methods
(e.g., ``click-box bidding,'' employing minimum bid increments and
activity rules and increasing the number of rounds per day) to ensure
that auctions close within a reasonable time.
105. Bid Withdrawal Payments. As discussed above, the Commission
recently implemented ``click-box bidding'' in an effort to improve the
auction process and eliminate erroneous bids. The Commission also
recently modified the electronic bidding format to limit withdrawals.
As a result of such changes, the types of erroneous bids discussed in
the Notice cannot occur under our new bidding format. The Commission
therefore concludes that its proposal regarding decreased bid
withdrawal payments in cases of erroneous bids is moot.
106. Misuse of Bid Withdrawals. Several commenters oppose the
Commission's proposal to place limits on bid withdrawals in certain
circumstances as a means of avoiding strategic withdrawals that are
intended for anti-competitive purposes. Both AT&T and Merlin argue that
the ability to withdraw bids is critical to a bidder's auction
strategy. While they recognize the difficulty in determining the true
intent behind a withdrawn bid, these commenters suggest that the
Commission continue to monitor each auction carefully, and address
abusive behavior on a case-by-case basis. Similarly, PageNet states
that the Commission should not limit bid withdrawals as they are
critical to providing applicants with the flexibility to correct bids
that are placed in error and to quickly change bidding strategy.
PageNet contends that concerns about strategic withdrawals intended to
produce anti-competitive results are not sufficient to eliminate the
bidding flexibility that bid withdrawals provide. Finally, AirTouch
suggests that the Commission permit bid withdrawals at any time,
subject to certain conditions. In particular, AirTouch recommends that:
(1) All bid withdrawals should be subject to applicable bid withdrawal
payments; (2) a bidder withdrawing a bid should not be permitted to
regain eligibility on any bidding units lost as a result of the
withdrawal; and (3) the high bidder in the round prior to the withdrawn
bid should be permitted to bid again on the license, and to reacquire
eligibility for bidding units necessary to resubmit the new bid.
107. In contrast, NextWave supports a limitation on bid
withdrawals. NextWave states that bid withdrawals are a necessary tool,
but in some instances, bid withdrawals are used for insincere bidding
designed to ``game'' the auction. To protect against such misuse,
NextWave proposes, for example, that the Commission create a fourth
stage of the auction, during which a bidder who has withdrawn from a
particular market would be prohibited from re-bidding in the same
market. In the past, the Commission has recognized that allowing bid
withdrawals facilitates efficient aggregation of licenses and pursuit
of efficient backup strategies as information becomes available during
the course of an auction. Nevertheless, the Commission also has
recognized that bidders may, in some instances, seek to remove bids for
improper purposes, such as to delay the close of the auction for
strategic purposes. For this reason, the Bureau has traditionally
retained the discretion to limit withdrawals as part of the management
of an auction. To prevent strategic delays to the close of the auction,
or other abuses, the Bureau should exercise its discretion assertively.
In addition, the Bureau should consider limiting the number of rounds
in which bidders may withdraw bids, and to prevent bidders from bidding
on a particular market if the Bureau finds that a bidder is abusing the
Commission's bid withdrawal procedures. These are among the types of
issues on which the Bureau will seek comment prior to the start of each
future auction.
108. Reauction Versus Offering to Second Highest Bidder. The
Commission will modify Sec. 1.2109(b) to reserve the discretion to
either reauction a defaulted license or offer it to the other highest
bidders (in descending order) at their final bids. 47 CFR 1.2109(b).
Several commenters support the reauction of defaulted licenses because
it helps to ensure that the price paid for a license is the current
price, rather than the price that was applicable at the time the
original auction occurred. Only two commenters oppose reauction in all
circumstances. Airadigm and AMTA oppose providing the Commission with
the discretion to reauction defaulted licenses because they believe
that awarding licenses to the next highest bidder will be faster than
reauctioning. However, as the Commission stated in the Notice, the
Commission has developed a computerized auction system and conducted
numerous auctions and now believes that the costs of a reauction, even
for a small number of relatively low value licenses, is generally
minimal. The Commission also believes that the planned use of regularly
scheduled quarterly auctions will ensure rapid reauction.
109. Further, the Commission notes that re-offering a defaulted
license to the next highest bidder (in descending order) at their final
bids may not ensure that the license will be awarded to the bidder who
values it the most highly. In particular, as the license is offered to
bidders at the next highest bids, other parties can argue that they
would pay more for the license if given the opportunity. In addition,
when more than one license is being auctioned, aggregation strategies
may shift during the course of the auction, affecting the value placed
on any individual license by a particular bidder. As the Commission
discussed in the Notice, when it first adopted rules governing the
licensing of defaulted licenses, the Commission stated that ``[i]n the
event that a winning bidder in a simultaneous multiple-round auction
defaults on its down payment obligations, the Commission will generally
reauction the license either to existing or new applicants.'' Noting
that in some circumstances the costs of conducting a reauction may not
always be justified, the Commission reserved the discretion in cases in
which the winning bidder defaults on its down payment obligation to
offer a defaulted license to the highest losing bidders (in descending
order of their bids) at their final bids if ``only a small number of
relatively low value licenses are to be reauctioned * * *.''
110. Nextel and others suggest that the Commission should retain
the discretion to award defaulted licenses to
[[Page 2334]]
the next highest bidder only when the default occurs soon after the
close of the auction and there has been no opportunity for parties to
file petitions to deny. Nextel suggests that in such an instance, there
is little risk of a significant change in market price, and no risk of
encouraging frivolous petitions to deny. The Commission is aware of the
dangers of adopting a rule which could have the unfortunate consequence
of encouraging the filing of frivolous petitions to deny. Nevertheless,
the Commission believes that by reserving the discretion to either
reauction defaulted licenses or award them to the next highest bidder,
the Commission will be in the best possible position to determine which
option serves the public interest in each particular situation.
VII. Anti-Collusion Rules
111. The Commission has taken this opportunity in revisiting our
general competitive bidding procedures to examine the effectiveness of
the anti-collusion rule in the 15 auctions the Commission has conducted
to date. The Commission continues to believe that its anti-collusion
rules are necessary to deter bidders from engaging in anti-competitive
behavior. Nevertheless, after careful review of the comments received
in this proceeding, the Commission has determined that some
modifications to Sec. 1.2105(c) can be made which will benefit bidders
in several respects, without jeopardizing the competitiveness and
overall integrity of our auction program.
112. In the Collusion MO&O, the Commission revisited the anti-
collusion rules prior to the start of the PCS auctions, and concluded
that allowing holders of non-controlling attributable interests in an
applicant greater flexibility to form agreements with other applicants
would help applicants to acquire the additional capital necessary to
bid successfully for licenses. See Implementation of Section 309(j) of
the Communications Act--Competitive Bidding, WT Docket No. 93-253,
Memorandum Opinion and Order, 59 FR 64159 (December 13, 1994)
(``Collusion MO&O''). The Commission therefore created an exception to
the general rule contained in Sec. 1.2105 to permit a holder of a non-
controlling attributable interest in one applicant for a particular
license or licenses to obtain ownership interests in or enter into
consortium arrangements with a second applicant for a license in the
same geographic service area. See 47 CFR 1.2105(c)(4). The attributable
interest holder must certify to the Commission that it has observed and
will observe certain restrictions on communication concerning the
applicants in which it holds an attributable interest or with which it
has entered into a bidding arrangement.
113. After considering the comments filed in response to our
proposals in the Notice, the Commission has decided to adopt a second
exception to our general rules prohibiting collusion. See 47 CFR
1.2105(c). Specifically, the Commission will permit a holder of a non-
controlling attributable interest in an applicant to obtain an
ownership interest in or enter into a consortium arrangement with
another applicant for a license in the same geographic area provided
that the original applicant has withdrawn from the auction, is no
longer placing bids, and has no further eligibility. To meet the
requirements of this exception, the attributable interest holder will
be required to certify to the Commission that it did not communicate
with the new applicant prior to the date the original applicant
withdrew from the auction, and that it will not convey bidding
information, or otherwise serve as a nexus between the previous
applicant and the new applicant. As stated in the Notice, this
additional exception will further facilitate the flow of capital to
auction applicants by encouraging, and providing the flexibility
necessary for, non-controlling investors to invest in other auction
applicants if their original applicant fails to complete the auction.
The majority of commenters addressing this proposal agree that it will
encourage investment in auction applicants without threatening the
overall competitiveness of the auction process.
114. Only Nextel and PageNet oppose this exception, citing the
potential for collusive activity when an investor in an applicant that
has chosen to withdraw from the auction explores possible investments
in other applicants, thus learning bidding strategies of multiple
auction participants. In addition, PageNet contends that this exception
could encourage speculation which would threaten the integrity of the
auction process and ultimately result in lower prices paid for the
spectrum. However, after balancing these factors, the Commission
believes that the benefits of this certification requirement, in
particular the likelihood that auction applicants will be able to
attract increased investment, exceed any possible disadvantages. The
Commission requires that auction applicants certify to the truthfulness
and accuracy of a number of issues on their Form 175 applications, and
to make minor amendments when necessary. The Commission believes that
applicants are no more likely to make false certifications about the
exception which the Commission adopts today than about other
information on the form. As discussed infra, the Commission also
reminds prospective applicants that the Commission will conduct a
detailed investigation in the event it becomes aware of a possible
violation of the anti-collusion rule, and that violations may result in
the loss of the down payment or full bid amount, the cancellation of
licenses, and preclusion from participation in future auctions.
115. Commenters in both the Paging proceeding and in this
proceeding support the creation of a safe harbor for discussions of
certain non-auction related business matters between applicants for the
same license areas. In general, these commenters argue that (1) the
Commission's anti-collusion rules cause unnecessary confusion in their
current form, (2) the purposes of the anti-collusion rules would not be
threatened by such a safe harbor, and (3) existing antitrust laws and
policies will adequately accomplish the goal of protecting the
competitiveness of the bidding process. As the auction program has
evolved, the Commission has continued to refine and clarify for bidders
the operation and impact of the anti-collusion rule upon bidder conduct
during the course of an auction. Prior to the start of the broadband
PCS D, E and F block auction, the Bureau received numerous inquiries
concerning the impact of these rules upon business contacts between
current broadband PCS licensees and auction winners and eligible
participants in the ongoing broadband PCS D, E and F Block auction. In
response to these inquiries, the Bureau released a Public Notice
providing guidance on these business negotiations in the context of our
anti-collusion rules. The Bureau emphasized that Sec. 1.2105(c) may
affect the way in which auction applicants conduct their routine
business during an auction by placing significant limitations upon
their ability to pursue business opportunities involving services in
the geographic areas for which they have applied to bid for licenses.
These interpretations have provided sufficient guidance concerning the
types of non-auction related communications which are permitted under
Sec. 1.2105(c), and the Commission therefore declines to create such a
safe harbor.
16. The Commission affirms the Bureau's interpretation of this
aspect of the anti-collusion rule. As a general matter, the anti-
collusion rule does not prohibit non auction-related business
[[Page 2335]]
negotiations between auction applicants who have applied for the same
geographic service areas. The Commission cautions auction applicants,
however, that discussions concerning, but not limited to, issues such
as management, resale, roaming, interconnection, partitioning and
disaggregation may all raise impermissible subject matter for
discussion because they may convey pricing information and bidding
strategy. Because auction applicants should avoid all discussions with
each other that will likely affect bids or bidding strategies, the
Commission believes that individual applicants, and not the Commission,
are in the best position to determine in the first instance which
communications are permissible and which are not.
117. As discussed above, the Notice also invited comment on any
other changes to our rules prohibiting collusion that commenters
believe are warranted. Section 1.2105(c)(6)(i) of the Commission's
rules provide that, for purposes of the anti-collusion rule, an
applicant is defined as an entity submitting a short-form application,
as well as all holders of partnership, ownership, and any stock
interest amounting to five percent or more of the entity. 47 CFR
1.2105(c)(6)(i). One commenter, the Coalition of Institutional
Investors (``CII''), states that defining any holder of five percent or
more of an auction applicant as part of the applicant for purposes of
the Commission's anti-collusion rules unnecessarily restricts
applicants' abilities to obtain financing from a variety of sources.
After careful consideration of the issue, the Commission agrees with
CII. Therefore, the Commission will increase the attribution standard
contained in Sec. 1.2105(c)(6)(i) to 10 percent, or any holder of a
controlling interest in the applicant.
118. A higher attribution standard will facilitate the flow of
capital to applicants by enabling parties to make investments in
multiple applicants, including applicants for licenses in the same
geographic areas. The Commission's decision to use an attribution
threshold of 10 percent is consistent with the change the Commission
makes to the general reporting requirement. The Commission recognizes
that some potential for collusion exists whenever an entity is
permitted to hold an interest in more than one applicant for licenses
in the same geographic service area. However, the Commission
reemphasizes that auction applicants and their owners continue to be
subject to existing antitrust laws, and that conduct that is
permissible under the Commission's rules may be prohibited by the
antitrust statute. In addition, the Commission reminds prospective
auction participants it will continue to scrutinize carefully any
instances in which bidding patterns suggest that collusion may be
occurring.
119. Finally, the Commission reemphasizes that the Commission will
aggressively investigate any allegations that an auction participant
has violated Sec. 1.2105(c). Bidders who are found to have violated the
Commission's anti-collusion rules may, among other sanctions, be
subject to the loss of their down payment or their full bid amount,
face the cancellation of their licenses, and may be prohibited from
participating in future auctions. In addition, where allegations appear
to give rise to violations of the federal antitrust laws, the
Commission may investigate and/or refer such cases to the United States
Department of Justice for investigation.
VIII. Pre-grant Construction
120. The Commission will adopt its proposal in the Notice to permit
applicants for all licenses awarded by competitive bidding to begin
construction of facilities prior to the grant of their applications.
All commenters addressing the issue support our proposal to permit
license applicants to begin construction of their facilities, at their
own risk, upon release of a public notice announcing the acceptance for
filing of post-auction long-form applications. These commenters agree
that allowing pre-grant construction furthers the statutory objective
of rapidly deploying new technologies, products, and services for the
benefit of the public. 47 U.S.C. 309(j)(3)(A).
121. Commenters also support our proposal to permit license
applicants with petitions to deny filed against their long-form
applications to begin construction of their facilities at the same time
as license applicants whose licenses are not the subject of pending
petitions to deny. While the Commission's current service-specific
rules require as a condition for pre-grant construction no pending
petitions to deny, the Commission concludes that the merits of
petitions to deny may be judged by an applicant and factored into its
assessment of the risk of proceeding with construction before license
grant. The Commission therefore adopts a pre-grant construction rule
for all services subject to competitive bidding that permits
construction by applicants that are subject to petitions to deny. Of
course, pre-grant construction will be subject to any service-related
restrictions, including but not limited to antenna restrictions,
environmental requirements, and international coordination. Any
applicant engaging in pre-grant construction activity does so entirely
at its own risk, and the Commission will not take such activity into
account in ruling on any petition to deny. Finally, the Commission
notes that it expects its licensing process to be more rapid generally
in light of the shortened petition to deny period permitted by the
Balanced Budget Act. Balanced Budget Act, section 3008.
IX. Conclusion
122. Based on the experience the Commission has gained from its 15
completed auctions, as well as the feedback it has received from
bidders, the Commission believes the time has come to streamline its
competitive bidding rules in order to make our licensing process more
efficient. In the past, the Commission has adjusted its auction
procedures for different services and has gained experience with the
process, resulting in the adoption of different procedures for
different auctionable services. This Third Report and Order amends
subpart Q of part 1 of the Commission's rules to reflect substantive
amendments and modifications intended to simplify these regulations,
supersede unnecessary rules wherever possible, and eliminate the need
to conduct separate, comprehensive rule making proceedings prior to
each auction. The Commission believes that the rules it adopts today
will benefit bidders and the auction process generally. The Commission
also believes these rules will help to provide more specific guidance
and flexibility on a number of issues that will increase the overall
effectiveness of our auctions.
X. Final Regulatory Flexibility Analysis
123. As required by the Regulatory Flexibility Act (RFA), 5 U.S.C.
603, the Commission has prepared a Final Regulatory Flexibility
Analysis (FRFA) of the expected impact on small entities of the rules
adopted in the Third Report and Order. The Commission will send a copy
of the Third Report and Order, including this FRFA, to the Chief
Counsel for Advocacy of the Small Business Administration. (In
addition, the Third Report and Order and FRFA (or summaries thereof)
will be published in the Federal Register.) As required by the
Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility
Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking
in WT Docket No. 97-82.
[[Page 2336]]
See 5 U.S.C. 604. The RFA is codified at 5 U.S.C. 601 et seq. See also,
Amendment of Part 1 of the Commission's Rules--Competitive Bidding
Proceeding, WT Docket No. 97-82, Order, Memorandum Opinion and Order,
and Notice of Proposed Rulemaking, 62 FR 13570 (March 21, 1997). The
Commission sought written public comment on the proposals in the Notice
of Proposed Rulemaking, including comment on the IRFA. This Final
Regulatory Flexibility Analysis (FRFA) in this Third Report and Order
(Order) conforms to the RFA, as amended by the Contract With America
Advancement Act of 1996 (CWAAA), Pub. L. 104-121, 110 Stat. 847 (1996).
A. Need for, and Objectives of, the Order in WT Docket No. 97-82
124. This Order makes substantive amendments and modifications to
the Commission's general competitive bidding rules for all auctionable
services. These changes to the competitive bidding rules are intended
to simplify the Commission's rules and regulations and eliminate
unnecessary rules wherever possible, increase the efficiency of the
competitive bidding process, and provide more specific guidance to
auction participants while also giving them more flexibility.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
125. One party, Merlin Telecom, Inc. (Merlin), filed comments
directly in response to the IRFA. Merlin raises six arguments:
(1) Merlin urges the Commission not to impose additional reporting
requirements or additional fees on applicants seeking installment
payments. In this Order, the Commission concludes that installment
payments should not be offered in auctions as a means of financing
small businesses and other designated entities seeking to secure
spectrum licenses. The Commission eliminates installment payments in
the auction of the lower 80 and General Category channels in the 800
MHz SMR service. The Commission notes that installment payments are not
the only tool available to assist small businesses. Section 3007 of the
Balanced Budget Act requires that the Commission conduct certain future
auctions in a manner that ensures that all proceeds from such bidding
are deposited in the U.S. Treasury not later than September 30, 2002.
The Commission seeks comment in the Further Notice on offering
installment payments in the future; however, section 3007 of the
Balanced Budget Act may require that these auctions be conducted
without offering long-term installment payments. Thus, there probably
will be no reporting requirements or fees for future installment
payments.
(2) Merlin contends that including past affiliates in the proposed
new definition of affiliate would require small businesses to keep more
extensive records and would be unduly burdensome. This Order adopts a
uniform definition of ``affiliate'' for all future auctions. The term
``affiliate'' is defined in the Part 1 rules as an individual or entity
that directly or indirectly controls or has the power to control the
applicant; is directly or indirectly controlled by the applicant; is
directly or indirectly controlled by a third person(s) that also
controls or has the power to control the applicant; or has an
``identity of interest'' with the applicant. The Commission concludes
that this definition has helped to ensure that businesses seeking small
business status are truly small. In addition, the Commission finds that
this definition is consistent with the decision to adopt a controlling
interest threshold for purposes of attribution of gross revenues of
investors and affiliates of an applicant.
(3) Merlin argues that the Commission's proposal to lower the
financial caps which permit small businesses to take advantage of
special benefits would limit the number of small businesses eligible
for benefits and thus increase the barriers to entry that small
businesses face. This Order adopts the proposal in the Notice to
continue to define small businesses based on the characteristics and
capital requirements of a specific service, in order to reduce the
barriers to entry faced by small businesses.
(4) Merlin argues that the Commission's proposals to reduce bidding
credits, raise the interest rate on installment payments, raise down
payments, and eliminate installment payments will have a negative
effect on the ability of small businesses to compete effectively in the
telecommunications industry. In this Order, the Commission concludes
that installment payments should not be offered in auctions as a means
of financing small businesses and other designated entities seeking to
secure spectrum licenses. In the Further Notice, the Commission seeks
comment on offering installment payments in the future; however,
section 3007 of the Balanced Budget Act may require that these auctions
be conducted without offering long-term installment payments. In light
of the decision to suspend installment payment financing for the near
future, the Commission determined that higher bidding credits would
better fulfill the mandate of section 309(j)(4)(D) of the
Communications Act to provide small businesses the opportunity to
participate in spectrum-based services. Therefore, the Commission
adopts bidding credits of 35 percent for designated entities with
average gross revenues not to exceed $3 million, 25 percent for
designated entities with average gross revenues not to exceed $15
million, and 15 percent for designated entities with average gross
revenues not to exceed $40 million. With respect to down payments, the
Commission adopts the proposal in the Notice to delegate to the Bureau
the discretion to determine the down payment amount on a service-by-
service basis. The Commission believes that a substantial down payment
is required to ensure that licensees have the financial capability to
attract the capital necessary to deploy and operate their systems and
to protect against default.
(5) Merlin argues that the proposal to require auction winners to
pay their second down payment regardless of a pending petition to deny
would increase the defaults by small businesses. In this Order, the
Commission is suspending the use of installment payments as a means of
financing small business participation in the auction program for the
immediate future. As a result, all auction winners, including small
businesses, will be required to submit the full payment owed on their
winning bids shortly after the license is ready to be granted. The
Commission notes that in the Balanced Budget Act Congress granted the
Commission authority to shorten the petition to deny period, and as a
result, to grant licenses much more rapidly. Sections 1.2108 (b) and
(c) of the rules are amended to provide that the Commission shall not
grant a license less than seven days after public notice that long-form
applications have been accepted for filing. In addition, the Commission
amends this section to provide that in all cases the period for filing
petitions to deny shall be no shorter than five days. Applications that
are the subject of petitions to deny will ordinarily take longer to
resolve than uncontested applications, these changes in procedure will
reduce the risk of frivolous petitions being filed solely for the
purpose of delay and will enhance the Commission's ability to resolve
petitions expeditiously. The Commission declines to require all winning
bidders to make their full payments at the same time regardless of
[[Page 2337]]
whether petitions to deny their applications have been filed.
(6) Finally, Merlin contends that the Commission should not adopt a
cross-default rule. In this Order, the Commission concludes that it
will not pursue a policy of cross-default (either within or across
services) where licensees default on an installment payment. The
Commission is eliminating the use of installment payments as a means of
financing small business participation in the auction program for the
foreseeable future. Therefore, in practice this decision will apply
only to existing licensees who are currently paying for their licenses
in installments.
C. Description and Estimate of the Number of Small Entities to Which
Rules Will Apply
126. The RFA directs agencies to provide a description of, and,
where feasible, an estimate of the number of small entities that will
be affected by our rules. The RFA generally defines the term ``small
entity'' as having the same meaning as the terms ``small business,''
``small organization,'' and ``small governmental jurisdiction.'' A
small organization is generally ``any not-for-profit enterprise which
is independently owned and operated and is not dominant in its field.''
Nationwide, there are 275,801 small organizations. ``Small governmental
jurisdiction'' generally means ``governments of cities, counties,
towns, townships, villages, school districts, or special districts,
with a population of less than 50,000.'' As of 1992, there were 85,006
such jurisdictions in the United States.
127. In addition, the term ``small business'' has the same meaning
as the term ``small business concern'' under Section 3 of the Small
Business Act. Under the Small Business Act, a ``small business
concern'' is one which: (1) Is independently owned and operated; (2) is
not dominant in its field of operation; and (3) meets any additional
criteria established by the Small Business Administration (SBA).
128. The rules adopted in this Order will allow all entities,
including existing cellular, PCS, paging, and other small
communications entities, to obtain licenses in auctionable services
through competitive bidding. These rules generally apply to future
auctions, but, with limited exceptions, will not apply to the initial
auctions of licenses in the paging, 220 MHz, 800 MHz Specialized Mobile
Radio (SMR), and Local Multipoint Distribution (LMDS) services. In
estimating the number of small entities who may participate in future
auctions of wireless services, the Commission anticipates that current
wireless services licensees are representative of future auction
participants. The following is our estimate of the number of small
entities who are current wireless licensees:
Estimates for Cellular Licensees
The Commission has not developed a definition of small entities
applicable to cellular licensees. Therefore, the applicable definition
of small entity is the definition under the Small Business
Administration (SBA) rules applicable to radiotelephone companies. This
definition provides that a small entity is a radiotelephone company
employing no more than 1,500 persons. The size data provided by the SBA
does not enable us to make a meaningful estimate of the number of
cellular providers which are small entities because it combines all
radiotelephone companies with 500 or more employees. The 1992 Census of
Transportation, Communications, and Utilities, conducted by the Bureau
of the Census, is the most recent information available. This document
shows that only 12 radiotelephone firms out of a total of 1,178 such
firms which operated during 1992 had 1,000 or more employees.
Therefore, even if all 12 of these firms were cellular telephone
companies, nearly all cellular carriers were small businesses under the
SBA's definition. The Commission assumes, for purposes of its
evaluations and conclusions in this FRFA, that all of the current
cellular licensees are small entities, as that term is defined by the
SBA. In addition, the Commission notes that there are 1,758 cellular
licenses; however, the Commission does not know the number of cellular
licensees, since a cellular licensee may own several licenses. The most
reliable source of information regarding the number of cellular service
providers nationwide appears to be data the Commission publishes
annually in its Telecommunications Industry Revenue report, regarding
the Telecommunications Relay Service (TRS). The report places cellular
licensees and Personal Communications Service (PCS) licensees in one
group. According to the data released in November, 1997, there are 804
companies reporting that they engage in cellular or PCS service.
Although it seems certain that some of these carriers are not
independently owned and operated, or have more than 1,500 employees,
the Commission is unable at this time to estimate with greater
precision the number of cellular service carriers that would qualify as
small business concerns under the SBA's definition. Consequently, the
Commission estimates that there are fewer than 804 small cellular
service carriers.
Estimates for Broadband and Narrowband PCS Licensees
Broadband PCS. The broadband PCS spectrum is divided into six
frequency blocks designated A through F. The Commission has defined
``small entity'' in the auctions for Blocks C and F as a firm that had
average gross revenues of less than $40 million in the three previous
calendar years. This definition of ``small entity'' in the context of
broadband PCS auctions has been approved by the SBA. The Commission has
auctioned broadband PCS licenses in Blocks A through F. Of the
qualified bidders in the C and F block auctions, all were
entrepreneurs--defined for these auctions as entities together with
affiliates, having gross revenues of less than $125 million and total
assets of less than $500 million at the time the FCC Form 175
application was filed. Ninety bidders, including C block reauction
winners, won 493 C block licenses and 88 bidders won 491 F block
licenses. For purposes of this FRFA, the Commission assumes that all of
the 90 C block broadband PCS licensees and 88 F block broadband PCS
licensees, a total of 178 licensees, are small entities.
Narrowband PCS. The Commission has auctioned nationwide and
regional licenses for narrowband PCS. There are 11 nationwide and 30
regional licensees for narrowband PCS. The Commission does not have
sufficient information to determine whether any of these licensees are
small businesses within the SBA-approved definition for radiotelephone
companies. At present, there have been no auctions held for the major
trading area (MTA) and basic trading area (BTA) narrowband PCS
licenses. The Commission anticipates a total of 561 MTA licenses and
2,958 BTA licenses will be awarded in the auctions. Given that nearly
all radiotelephone companies have no more than 1,500 employees, and
that no reliable estimate of the number of prospective MTA and BTA
narrowband licensees can be made, the Commission assumes, for purposes
of this FRFA, that all of the licenses will be awarded to small
entities, as that term is defined by the SBA.
Estimates for 220 MHz Radio Services
Since the Commission has not yet defined a small business with
respect to 220 MHz radio services, it will utilize the SBA definition
applicable to radiotelephone companies--an entity employing no more
than 1,500 persons.
[[Page 2338]]
With respect to the 220 MHz services, the Commission has proposed a
two-tiered definition of small business for purposes of auctions: (1)
For Economic Area (EA) licensees, a firm with average annual gross
revenues of not more than $6 million for the preceding three years; and
(2) for regional and nationwide licensees, a firm with average annual
gross revenues of not more than $15 million for the preceding three
years. Since this definition has not yet been approved by the SBA, the
Commission will utilize the SBA definition applicable to radiotelephone
companies. Given that nearly all radiotelephone companies employ no
more than 1,500 employees, the Commission will consider the
approximately 3,800 incumbent licensees as small businesses under the
SBA definition.
Common Carrier Paging
The Commission has proposed a two-tier definition of small
businesses in the context of auctioning geographic area paging licenses
in the Common Carrier Paging and exclusive Private Carrier Paging
services. Under the proposal, a small business will be defined as
either (1) an entity that, together with its affiliates and controlling
principals, has average gross revenues for the three preceding years of
not more than $3 million; or (2) an entity that, together with
affiliates and controlling principals, has average gross revenues for
the three preceding calendar years of not more than $15 million. Since
the SBA has not yet approved this definition for paging services, the
Commission will utilize the SBA definition applicable to radiotelephone
companies--an entity employing no more than 1,500 persons. At present,
there are approximately 24,000 Private Paging licenses and 74,000
Common Carrier Paging licenses. According to Telecommunications
Industry Revenue data, there were 172 ``paging and other mobile''
carriers reporting that they engage in these services. See FCC,
Telecommunications Industry Revenue: TRS Fund Worksheet Data, Figure 2
(Number of Carriers Paying Into the TRS Fund by Type of Carrier) (Nov.
1997). Consequently, the Commission estimates that there are fewer than
172 small paging carriers. The Commission estimates that the majority
of private and common carrier paging providers would qualify as small
businesses under the SBA definition.
Air-Ground Radiotelephone Service
The Commission has not adopted a definition of small business
specific to the Air-Ground radiotelephone service. Accordingly, the
Commission will use the SBA definition applicable to radiotelephone
companies, i.e., an entity employing no more than 1,500 persons. There
are approximately 100 licensees in the Air-Ground radiotelephone
service, and the Commission estimates that almost all of them qualify
as small under the SBA definition.
Specialized Mobile Radio Licensees
The Commission awards bidding credits in auctions for geographic
area 800 MHz and 900 MHz SMR licenses to two tiers of firms: (1)
``Small entities,'' those with revenues of no more than $15 million in
each of the three previous calendar years; and (2) ``very small
entities,'' those with revenues of no more than $3 million in each of
the three previous calendar years. The regulations defining ``small
entity'' and ``very small entity'' in the context of 800 MHz SMR and
900 MHz SMR have been approved by the SBA. The Commission does not know
how many firms provide 800 MHz or 900 MHz geographic area SMR service
pursuant to extended implementation authorizations, nor how many of
these providers have annual revenues of no more than $15 million. One
firm has over $15 million in revenues. The Commission assumes for
purposes of this FRFA that all of the remaining existing extended
implementation authorizations are held by small entities, as that term
is defined by the SBA. The Commission has held auctions for geographic
area licenses in the 900 MHz SMR band, and recently completed an
auction for geographic area 800 MHz SMR licenses. There were 60 winning
bidders who qualified as small and very small entities in the 900 MHz
auction. In the recently concluded 800 MHz SMR auction there were 524
licenses won by winning bidders, of which 38 licenses were won by small
and very small entities.
Private Land Mobile Radio Licensees (PLMR)
The Commission has not developed a definition of small entities
specifically applicable to PLMR licensees. For the purpose of
determining whether a licensee is a small business as defined by the
SBA, each licensee would need to be evaluated within its own business
area. The Commission is unable at this time to estimate the number of
small businesses which could be impacted by the rules. However, the
Commission's 1994 Annual Report on PLMRs indicates that at the end of
fiscal year 1994 there were 1,087,267 licensees operating 12,481,989
transmitters in the PLMR bands below 512 MHz. Any entity engaged in a
commercial activity is eligible to hold a PLMR license, therefore,
these rules could potentially impact every small business in the United
States if PLMR licenses are subject to auction under these new auction
rules.
Aviation and Marine Radio Service
Small entities in the aviation and marine radio services use a
marine very high frequency (VHF) radio, any type of emergency position
indicating radio beacon (EPIRB) and/or radar, a VHF aircraft radio,
and/or any type of emergency locator transmitter (ELT). The Commission
has not developed a definition of small entities specifically
applicable to these small businesses. Therefore, the applicable
definition of small entity is the definition under the SBA rules
applicable to a small organization, generally ``any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.'' Nationwide, there are 275,801 small
organizations. ``Small governmental jurisdiction'' generally means
``governments of cities, counties, towns, townships, villages, school
districts, or special districts, with a population of less than
50,000.'' As of 1992, there were 85,006 such jurisdictions in the
United States. The Commission is unable at this time to make a
meaningful estimate of the number of potential small businesses under
these size standards. Most applicants for individual recreational
licenses are individuals. Approximately 581,000 ship station licensees
and 131,000 aircraft station licensees operate domestically and are not
subject to the radio carriage requirements of any statute or treaty.
Therefore, for purposes of the evaluations and conclusions in this
FRFA, the Commission estimates that there may be at least 712,000
potential licensees which are individuals or are small entities, as
that term is defined by the SBA.
Offshore Radiotelephone Service
This service operates on several UHF TV broadcast channels that are
not used for TV broadcasting in the coastal area of the states
bordering the Gulf of Mexico. At present, there are approximately 55
licensees in this service. The Commission is unable at this time to
estimate the number of licensees that would qualify as small entities
under the SBA definition for radiotelephone communications.
General Wireless Communication Service
This service was created by the Commission on July 31, 1995 by
transferring 25 MHz of spectrum in the
[[Page 2339]]
4660-4685 MHz band from the federal government to private sector use.
The Commission has announced that an auction of 875 GWCS licenses will
begin on May 27, 1998. The Commission is unable at this time to
estimate the number of licensees that would qualify as small entities
under the SBA definition for radiotelephone communications.
D. Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements
129. All license applicants will be subject to reporting and
recordkeeping requirements to comply with the competitive bidding
rules. Specifically, applicants will apply for license auctions by
filing a short-form application and will file a long-form application
at the conclusion of the auction. Additionally, entities seeking
treatment as ``small businesses'' will need to submit information
pertaining to the gross revenues of the small business applicant, its
affiliates, and certain investors in the applicant.
E. Steps Taken to Minimize the Economic Impact on Small Entities and
Significant Alternatives Considered
130. Among other goals, Section 309(j) directs the Commission to
disseminate licenses among a wide variety of applicants, including
small businesses and other designated entities. At the same time,
Section 309(j) requires that the Commission ensure the development and
rapid deployment of new technologies, products, and services for the
benefit of the public, and recover for the public a portion of the
value of the public spectrum resource made available for commercial
use.
131. The Commission received numerous comments addressing the
applicability of general competitive bidding rules for future auctions.
Many commenters support general competitive bidding rules, but argue
that the Commission should adopt service-specific rules in particular
instances, such as a reauction. For example, two commenters, AICC and
AAA, argue that shared channels should not be auctioned under the
general competitive bidding procedures. Hughes contends that if
satellite services are auctioned, the Commission must conduct a
service-specific rulemaking tailored to the nature of the satellite
industry. The Commission does not address the issue of the
auctionability of particular services in this proceeding; however,
service-specific auction rules will be adopted in the future where the
general competitive bidding rules are inappropriate.
132. The Commission also received numerous comments with respect to
the issue of eliminating installment payments. The Commission has
reviewed all of the comments in response to the Notice of Proposed
Rulemaking in this docket, as well as the comments filed in response to
Installment Public Notice (see ``Wireless Telecommunications Bureau
Seeks Comment on Broadband PCS C and F Block Installment Payment
Issues,'' Public Notice, DA 97-82, 62 FR 31777 (June 11, 1997)
(``Installment Public Notice'')) and concludes that installment
payments should not be offered in auctions as a means of financing
small businesses and other designated entities seeking to secure
spectrum licenses. In this Order, Commission eliminates installment
payments in the auction of the lower 80 and General Category channels
in the 800 MHz SMR service. The Commission notes that installment
payments are not the only tool available to assist small businesses,
and that section 3007 of the Balanced Budget Act requires that the
Commission conduct certain future auctions in a manner that ensures
that all proceeds from such bidding are deposited in the U.S. Treasury
not later than September 30, 2002. The Commission seeks comment in the
Further Notice on offering installment payments in the future; however,
section 3007 of the Balanced Budget Act may require that these auctions
be conducted without offering long-term installment payments.
133. In assessing the public interest, the Commission must try to
ensure that all the objectives of section 309(j) are considered. In
this Order, the Commission continues the practice of defining small
business standards on a service-specific basis; adopts uniform
definitions of ``gross revenues'' and ``affiliate''; eliminates the use
of installment payments for the 800 MHz Lower 80 channels and General
Category channels services; suspends the use of installment payments
for other services to be auctioned in the immediate future; provides
for higher bidding credits, in lieu of installment payments, to
encourage and facilitate the participation of designated entities in
future auctions; and modifies the unjust enrichment rule.
134. In addition, this Order requires electronic filing of all
short-form and long-form applications, beginning January 1, 1999;
adopts a uniform definition of major amendments to the short-form;
adopts general ownership disclosure requirements; affirms the policy of
refunding upfront payments before the end of an auction to bidders that
lose eligibility; adopts uniform default rules to all auctionable
services; permits auction winners who have submitted a timely down
payment to submit final payments 10 business days after the applicable
deadline, provided the appropriate late fee is paid; adopts one 90-day
non-delinquency period and one automatic 90-day grace period, and a
late payment fee, similar to the rules for broadband PCS F block for
licensees currently paying under installments; and clarifies that the
Commission will not pursue a policy of cross-default, either within or
across services, where licensees default on an installment payment.
135. Finally, this Order delegates authority to the Wireless
Telecommunications Bureau to seek comment on specific mechanisms
relating to auction conduct; allows for real-time bidding in
simultaneous multiple-round auctions; provides that the Bureau will
seek comment on and specify a minimum opening bid and/or reserve price
in future auctions; adopts, for all auctionable services, the broadband
PCS rules for bid withdrawal payments in the event of erroneous bids;
modifies the attributable investor threshold of the anti-collusion rule
to include controlling interests and/or holders of a 10 percent or
greater interest in the applicant and to permit an entity that has
invested in an applicant that withdraws from an auction to invest in
other applicants that have applied to bid in the same markets; and
permits all auction winners to begin construction at their own risk
upon issuance of a public notice announcing the auction winners.
136. The Commission believes that the objectives of section 309(j)
are met by the rule changes in this Order. In addition, this Order
serves the public interest by simplifying regulations, eliminating
unnecessary rules, increasing the efficiency of the competitive bidding
process, and providing more specific guidance to auction participants
while also giving them more flexibility.
F. Report to Congress
137. The Commission shall send a copy of this Final Regulatory
Flexibility Analysis, along with this Order, in a report to Congress
pursuant to the Small Business Regulatory Enforcement Fairness Act of
1996, 5 U.S.C. 801(a)(1)(A). A copy of the Order and this FRFA (or a
summary thereof) will be published in the Federal Register. See 5
U.S.C. 604(b). A copy of the Order and this FRFA will also be sent to
the
[[Page 2340]]
Chief Counsel for Advocacy of the Small Business Administration.
XII. Paperwork Reduction Act Analysis
Notice of Public Information Collections Submitted to OMB for Emergency
Review and Approval
Paperwork Reduction Act
The Federal Communications Commission, as part of its continuing
effort to reduce paperwork burden, invites the general public and other
federal agencies to take this opportunity to comment on the following
emergency information collection, as required by the Paperwork
Reduction Act of 1995, Pub. L. 104-13. An agency may not conduct or
sponsor a collection of information unless it displays a currently
valid control number. No person shall be subject to any penalty for
failing to comply with a collection of information subject to the
Paperwork Reduction Act (PRA) that does not display a valid control
number. Comments are requested concerning whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility, the accuracy of the Commission's burden
estimate, ways to enhance the quality, utility and clarity of the
information collected, and ways to minimize the burden of the
collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology. The Commission is seeking emergency approval for this
information collection by March 2, 1998 under the provisions of 5 CFR
1320.13.
DATES: Persons wishing to comment on this information collection should
submit comments by February 25, 1998.
ADDRESSES: Direct all comments to Judy Boley, Federal Communications
Commission, Room 234, 1919 M St., NW., Washington, DC 20554 or via
internet to JB[email protected] and Timothy Fain, OMB Desk Officer, 10236
NEOB 725 17th Street, NW., Washington, DC 20503 or [email protected].
FOR FURTHER INFORMATION CONTACT: for additional information or copies
of the information collection contact Judy Boley at (202) 418-0217 or
via Internet at [email protected].
SUPPLEMENTARY INFORMATION: OMB approval Number 3060-0767 Title: Auction
Forms and License Transfer Disclosures: Supplement For the Second
Report and Order, Order on Reconsideration and Fifth Notice of Proposed
Rulemaking in CC Docket No. 92-297.
Type of Review: Revised Collection.
Respondents: Businesses or Other For-profit entities.
Number of Respondents: 44,000.
Total Annual Burden: 773,000 hours.
Total Cost to Respondents: $46,347,350.
Needs and Uses
The Commission is adopting a general rule to determine the amount
of unjust enrichment payments to be assessed upon assignment, transfer,
partitioning and disaggregation of licenses. The new rule, applicable
to all current and future licensees, is based upon the unjust
enrichment rule currently applicable to broadband PCS licensees.
Therefore, transfer disclosure requirements will apply in all these
license transactions.
Second, the Commission is amending its general anti-collusion
rules, permitting the holder of a non-controlling attributable interest
in an applicant to obtain an ownership interest in or enter into a
consortium arrangement with another applicant for a license in the same
geographic area provided that the original applicant has withdrawn from
the auction, is no longer placing bids, and has no further eligibility.
To meet the requirements of the exception, the attributable interest
holder will be required to certify to the Commission that it did not
communicate with the new applicant prior to the date the original
applicant withdrew from the auction, and that it will not convey
bidding information, or otherwise serve as a nexus between the previous
and the new applicant.
These requirements are being added to the existing requirements.
The number of respondents will not increase but the annual burden hours
and costs will increase by an estimated 8,500 hours and $612,650.
List of Subjects
47 CFR Part 1
Communications common carriers, Reporting and recordkeeping
requirements.
47 CFR Part 21
Communications common carriers, Reporting and recordkeeping
requirements.
47 CFR Part 90
Reporting and recordkeeping requirements.
47 CFR Part 95
Reporting and recordkeeping requirements.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
Parts 1, 21, 24, 27, 90 and 95 of Title 47 of the Code of Federal
Regulations are amended as follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for part 1 continues to read as follows:
Authority: 47 U.S.C. 151, 154, 207, 303 and 309(j), unless
otherwise noted.
2. Section 1.2101 is revised to read as follows:
Sec. 1.2101 Purpose.
The provisions of this subpart implement Section 309(j) of the
Communications Act of 1934, as added by the Omnibus Budget
Reconciliation Act of 1993 (Pub. L. 103-66) and the Balanced Budget Act
of 1997 (Pub. L. 105-33), authorizing the Commission to employ
competitive bidding procedures to choose from among two or more
mutually exclusive applications for certain initial licenses.
3. Section 1.2102 is amended by revising paragraphs (a) and (b) and
adding a note to the section to read as follows:
Sec. 1.2102 Eligibility of applications for competitive bidding.
(a) Mutually exclusive initial applications are subject to
competitive bidding.
(b) The following types of license applications are not subject to
competitive bidding procedures:
(1) Public safety radio services, including private internal radio
services used by state and local governments and non-government
entities and including emergency road services provided by not-for-
profit organizations, that
(i) Are used to protect the safety of life, health, or property;
and
(ii) Are not commercially available to the public;
(2) Initial licenses or construction permits for digital television
service given to existing terrestrial broadcast licensees to replace
their analog television service licenses; or
(3) Noncommercial educational and public broadcast stations
described under 47 U.S.C. 397(6).
* * * * *
Note to Sec. 1.2102: To determine the rules that apply to
competitive bidding, specific service rules should also be
consulted.
4. Section 1.2103 is amended by revising paragraph (a) and adding
paragraph (d) to read as follows:
[[Page 2341]]
Sec. 1.2103 Competitive bidding design options.
(a) The Commission will choose from one or more of the following
types of auction designs for services or classes of services subject to
competitive bidding:
(1) Simultaneous multiple-round auctions (using remote or on-site
electronic bidding);
(2) Sequential multiple round auctions (using either oral ascending
or remote and/or on-site electronic bidding);
(3) Sequential or simultaneous single-round auctions (using either
sealed paper or remote and/or on-site electronic bidding); and
(4) Combinatorial (package/contingent) bidding auctions.
* * * * *
(d) The Commission may use real time bidding in all electronic
auction designs.
5. Section 1.2104 is amended by revising paragraphs (d) and (g) to
read as follows:
Sec. 1.2104 Competitive bidding mechanisms.
* * * * *
(d) Minimum Bid Increments, Minimum Opening Bids and Maximum Bid
Increments. The Commission may, by announcement before or during an
auction, require minimum bid increments in dollar or percentage terms.
The Commission also may establish minimum opening bids and maximum bid
increments on a service-specific basis.
* * * * *
(g) Withdrawal, Default and Disqualification Payment. As specified
below, when the Commission conducts an auction pursuant to Sec. 1.2103,
the Commission will impose payments on bidders who withdraw high bids
during the course of an auction, or who default on payments due after
an auction closes or who are disqualified.
(1) Bid withdrawal prior to close of auction. A bidder who
withdraws a high bid during the course of an auction is subject to a
payment equal to the difference between the amount bid and the amount
of the winning bid the next time the license is offered by the
Commission. The bid withdrawal payment is either the difference between
the net withdrawn bid and the subsequent net winning bid, or the
difference between the gross withdrawn bid and the subsequent gross
winning bid, whichever is less. No withdrawal payment is assessed if
the subsequent winning bid exceeds the withdrawn bid. This payment
amount is deducted from any upfront payments or down payments that the
withdrawing bidder has deposited with the Commission.
(2) Default or disqualification after close of auction. If a high
bidder defaults or is disqualified after the close of such an auction,
the defaulting bidder will be subject to the payment in paragraph
(g)(1) of this section plus an additional payment equal to 3 percent of
the subsequent winning bid. If the subsequent winning bid exceeds the
defaulting bidder's bid amount, the 3 percent payment will be
calculated based on the defaulting bidder's bid amount. If either bid
amount is subject to a bidding credit, the 3 percent credit will be
calculated using the same bid amounts and basis (net or gross bids) as
in the calculation of the payment in paragraph (g)(1) of this section.
Thus, for example, if gross bids are used to calculate the payment in
paragraph (g)(1) of this section, the 3 percent will be applied to the
gross amount of the subsequent winning bid, or the gross amount of the
defaulting bid, whichever is less.
* * * * *
6. Section 1.2105 is revised to read as follows:
Sec. 1.2105 Bidding application and certification procedures;
prohibition of collusion.
(a) Submission of Short-Form Application (FCC Form 175). In order
to be eligible to bid, an applicant must timely submit a short-form
application (FCC Form 175), together with any appropriate upfront
payment set forth by Public Notice. Beginning January 1, 1999, all
short-form applications must be filed electronically.
(1) All short-form applications will be due:
(i) On the date(s) specified by public notice; or
(ii) In the case of application filing dates which occur
automatically by operation of law (see, e.g., 47 CFR 22.902), on a date
specified by public notice after the Commission has reviewed the
applications that have been filed on those dates and determined that
mutual exclusivity exists.
(2) The short-form application must contain the following
information:
(i) Identification of each license on which the applicant wishes to
bid;
(ii)(A) The applicant's name, if the applicant is an individual. If
the applicant is a corporation, then the short-form application will
require the name and address of the corporate office and the name and
title of an officer or director. If the applicant is a partnership,
then the application will require the name, citizenship and address of
all general partners, and, if a partner is not a natural person, then
the name and title of a responsible person should be included as well.
If the applicant is a trust, then the name and address of the trustee
will be required. If the applicant is none of the above, then it must
identify and describe itself and its principals or other responsible
persons; and
(B) Applicant ownership information, as set forth in Sec. 1.2112.
(iii) The identity of the person(s) authorized to make or withdraw
a bid;
(iv) If the applicant applies as a designated entity pursuant to
Sec. 1.2110, a statement to that effect and a declaration, under
penalty of perjury, that the applicant is qualified as a designated
entity under Sec. 1.2110.
(v) Certification that the applicant is legally, technically,
financially and otherwise qualified pursuant to section 308(b) of the
Communications Act of 1934, as amended. The Commission will accept
applications certifying that a request for waiver or other relief from
the requirements of section 310 is pending;
(vi) Certification that the applicant is in compliance with the
foreign ownership provisions of section 310 of the Communications Act
of 1934, as amended;
(vii) Certification that the applicant is and will, during the
pendency of its application(s), remain in compliance with any service-
specific qualifications applicable to the licenses on which the
applicant intends to bid including, but not limited to, financial
qualifications. The Commission may require certification in certain
services that the applicant will, following grant of a license, come
into compliance with certain service-specific rules, including, but not
limited to, ownership eligibility limitations;
(viii) An exhibit, certified as truthful under penalty of perjury,
identifying all parties with whom the applicant has entered into
partnerships, joint ventures, consortia or other agreements,
arrangements or understandings of any kind relating to the licenses
being auctioned, including any such agreements relating to the post-
auction market structure.
(ix) Certification under penalty of perjury that it has not entered
and will not enter into any explicit or implicit agreements,
arrangements or understandings of any kind with any parties other than
those identified pursuant to paragraph (a)(2)(viii) regarding the
amount of their bids, bidding strategies or the particular licenses on
which they will or will not bid.
Note to paragraph (a): The Commission may also request
applicants to submit
[[Page 2342]]
additional information for informational purposes to aid in its
preparation of required reports to Congress.
(b) Modification and Dismissal of Short-Form Application (FCC Form
175). (1) Any short-form application (FCC Form 175) that does not
contain all of the certifications required pursuant to this section is
unacceptable for filing and cannot be corrected subsequent to the
applicable filing deadline. The application will be dismissed with
prejudice and the upfront payment, if paid, will be returned.
(2) The Commission will provide bidders a limited opportunity to
cure defects specified herein (except for failure to sign the
application and to make certifications) and to resubmit a corrected
application. During the resubmission period for curing defects, a
short-form application may be amended or modified to cure defects
identified by the Commission or to make minor amendments or
modifications. After the resubmission period has ended, a short-form
application may be amended or modified to make minor changes or correct
minor errors in the application. Major amendments cannot be made to a
short-form application after the initial filing deadline. Major
amendments include changes in ownership of the applicant that would
constitute an assignment or transfer of control, changes in an
applicant's size which would affect eligibility for designated entity
provisions, and changes in the license service areas identified on the
short-form application on which the applicant intends to bid. Minor
amendments include, but are not limited to, the correction of
typographical errors and other minor defects not identified as major.
An application will be considered to be newly filed if it is amended by
a major amendment and may not be resubmitted after applicable filing
deadlines.
(3) Applicants who fail to correct defects in their applications in
a timely manner as specified by public notice will have their
applications dismissed with no opportunity for resubmission.
(c) Prohibition of collusion. (1) Except as provided in paragraphs
(c)(2), (c)(3) and (c)(4) of this section, after the filing of short-
form applications, all applicants are prohibited from cooperating,
collaborating, discussing or disclosing in any manner the substance of
their bids or bidding strategies, or discussing or negotiating
settlement agreements, with other applicants until after the high
bidder makes the required down payment, unless such applicants are
members of a bidding consortium or other joint bidding arrangement
identified on the bidder's short-form application pursuant to
Sec. 1.2105(a)(2)(viii).
(2) Applicants may modify their short-form applications to reflect
formation of consortia or changes in ownership at any time before or
during an auction, provided such changes do not result in a change in
control of the applicant, and provided that the parties forming
consortia or entering into ownership agreements have not applied for
licenses in any of the same geographic license areas. Such changes will
not be considered major modifications of the application.
(3) After the filing of short-form applications, applicants may
make agreements to bid jointly for licenses, provided the parties to
the agreement have not applied for licenses in any of the same
geographic license areas.
(4) After the filing of short-form applications, a holder of a non-
controlling attributable interest in an entity submitting a short-form
application may acquire an ownership interest in, form a consortium
with, or enter into a joint bidding arrangement with, other applicants
for licenses in the same geographic license area, provided that:
(i) The attributable interest holder certifies to the Commission
that it has not communicated 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 a consortium or joint bidding arrangement, and which have applied
for licenses in the same geographic license area(s); and
(ii) The arrangements do not result in any change in control of an
applicant; or
(iii) When an applicant has withdrawn from the auction, is no
longer placing bids and has no further eligibility, a holder of a non-
controlling, attributable interest in such an applicant may obtain an
ownership interest in or enter into a consortium with another applicant
for a license in the same geographic service area, provided that the
attributable interest holder certifies to the Commission that it did
not communicate with the new applicant prior to the date that the
original applicant withdrew from the auction.
(5) Applicants must modify their short-form applications to reflect
any changes in ownership or in membership of consortia or joint bidding
arrangements.
(6) For purposes of this paragraph:
(i) The term applicant shall include all controlling interests in
the entity submitting a short-form application to participate in an
auction (FCC Form 175), as well as all holders of partnership and other
ownership interests and any stock interest amounting to 10 percent or
more of the entity, or outstanding stock, or outstanding voting stock
of the entity submitting a short-form application, and all officers and
directors of that entity; and
(ii) The term bids or bidding strategies shall include capital
calls or requests for additional funds in support of bids or bidding
strategies.
Example: Company A is an applicant in area 1. Company B and
Company C each own 10 percent of Company A. Company D is an
applicant in area 1, area 2, and area 3. Company C is an applicant
in area 3. Without violating the Commission's Rules, Company B can
enter into a consortium arrangement with Company D or acquire an
ownership interest in Company D if Company B certifies either (1)
that it has communicated with and will communicate neither with
Company A or anyone else concerning Company A's bids or bidding
strategy, nor with Company C or anyone else concerning Company C's
bids or bidding strategy, or (2) that it has not communicated with
and will not communicate with Company D or anyone else concerning
Company D's bids or bidding strategy.
7. Section 1.2107 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 1.2107 Submission of down payment and filing of long-form
applications.
* * * * *
(b) Unless otherwise specified by public notice, within ten (10)
business days after being notified that it is a high bidder on a
particular license(s), a high bidder must submit to the Commission's
lockbox bank such additional funds (the ``down payment'') as are
necessary to bring its total deposits (not including upfront payments
applied to satisfy bid withdrawal or default payments) up to twenty
(20) percent of its high bid(s). (In single round sealed bid auctions
conducted under Sec. 1.2103, however, bidders may be required to submit
their down payments with their bids.) Unless otherwise specified by
public notice, this down payment must be made by wire transfer in U.S.
dollars from a financial institution whose deposits are insured by the
Federal Deposit Insurance Corporation and must be made payable to the
Federal Communications Commission. Down payments will be held by the
Commission until the high bidder has been awarded the license and has
paid the remaining balance due on the license or authorization, in
which case it will not be returned, or until the winning bidder is
found unqualified to
[[Page 2343]]
be a licensee or has defaulted, in which case it will be returned, less
applicable payments. No interest on any down payment will be paid to
the bidders.
(c) A high bidder that meets its down payment obligations in a
timely manner must, within ten (10) business days after being notified
that it is a high bidder, submit an additional application (the ``long-
form application'') pursuant to the rules governing the service in
which the applicant is the high bidder. Notwithstanding any other
provision in title 47 of the Code of Federal Regulations to the
contrary, high bidders need not submit an additional application filing
fee with their long-form applications. Specific procedures for filing
applications will be set out by Public Notice. Beginning January 1,
1999, all long-form applications must be filed electronically. An
applicant that fails to submit the required long-form application under
this paragraph and fails to establish good cause for any late-filed
submission, shall be deemed to have defaulted and will be subject to
the payments set forth in Sec. 1.2104.
* * * * *
8. Section 1.2108 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 1.2108 Procedures for filing petitions to deny against long-form
applications.
* * * * *
(b) Within a period specified by Public Notice, and after the
Commission by public notice announces that long-form applications have
been accepted for filing, petitions to deny such applications may be
filed. In all cases, the period for filing petitions to deny shall be
no shorter than five (5) days. Any such petitions must contain
allegations of fact supported by affidavit of a person or persons with
personal knowledge thereof.
(c) An applicant may file an opposition to any petition to deny,
and the petitioner a reply to such opposition. Allegations of fact or
denials thereof must be supported by affidavit of a person or persons
with personal knowledge thereof. The time for filing such oppositions
shall be at least five (5) days from the filing date for petitions to
deny, and the time for filing replies shall be at least five (5) days
from the filing date for oppositions. The Commission may grant a
license based on any long-form application that has been accepted for
filing. The Commission shall in no case grant licenses earlier than
seven (7) days following issuance of a public notice announcing long-
form applications have been accepted for filing.
* * * * *
9. Section 1.2109 is amended by revising paragraphs (a), (b) and
(c) to read as follows:
Sec. 1.2109 License grant, denial, default, and disqualification.
(a) Unless otherwise specified by public notice, auction winners
are required to pay the balance of their winning bids in a lump sum
within ten (10) business days following the release of a public notice
establishing the payment deadline. If a winning bidder fails to pay the
balance of its winning bids in a lump sum by the applicable deadline as
specified by the Commission, it will be allowed to make payment within
ten (10) business days after the payment deadline, provided that it
also pays a late fee equal to five percent of the amount due. When a
winning bidder fails to pay the balance of its winning bid by the late
payment deadline, it is considered to be in default on its license(s)
and subject to the applicable default payments. Licenses will be
awarded upon the full and timely payment of winning bids and any
applicable late fees.
(b) If a winning bidder withdraws its bid after the Commission has
declared competitive bidding closed or fails to remit the required down
payment within ten (10) business days after the Commission has declared
competitive bidding closed, the bidder will be deemed to have
defaulted, its application will be dismissed, and it will be liable for
the default payment specified in Sec. 1.2104(g)(2). In such event, the
Commission, at its discretion, may either re-auction the license to
existing or new applicants or offer it to the other highest bidders (in
descending order) at their final bids. The down payment obligations set
forth in Sec. 1.2107(b) will apply.
(c) A winning bidder who is found unqualified to be a licensee,
fails to remit the balance of its winning bid in a timely manner, or
defaults or is disqualified for any reason after having made the
required down payment, will be deemed to have defaulted and will be
liable for the payment set forth in Sec. 1.2104(g)(2). In such event,
the Commission may either re-auction the license to existing or new
applicants or offer it to the other highest bidders (in descending
order) at their final bids.
* * * * *
10. Section 1.2110 is revised to read as follows:
Sec. 1.2110 Designated entities.
(a) Designated entities are small businesses, businesses owned by
members of minority groups and/or women, and rural telephone companies.
(b) Definitions. (1) Small businesses. The Commission will
establish the definition of a small business on a service-specific
basis, taking into consideration the characteristics and capital
requirements of the particular service.
(2) Businesses owned by members of minority groups and/or women.
Unless otherwise provided in rules governing specific services, a
business owned by members of minority groups and/or women is one in
which minorities and/or women who are U.S. citizens control the
applicant, have at least 50.1 percent equity ownership and, in the case
of a corporate applicant, a 50.1 percent voting interest. For
applicants that are partnerships, every general partner either must be
a minority and/or woman (or minorities and/or women) who are U.S.
citizens and who individually or together own at least 50.1 percent of
the partnership equity, or an entity that is 100 percent owned and
controlled by minorities and/or women who are U.S. citizens. The
interests of minorities and women are to be calculated on a fully-
diluted basis; agreements such as stock options and convertible
debentures shall be considered to have a present effect on the power to
control an entity and shall be treated as if the rights thereunder
already have been fully exercised. However, upon a demonstration that
options or conversion rights held by non-controlling principals will
not deprive the minority and female principals of a substantial
financial stake in the venture or impair their rights to control the
designated entity, a designated entity may seek a waiver of the
requirement that the equity of the minority and female principals must
be calculated on a fully-diluted basis. The term minority includes
individuals of African American, Hispanic-surnamed, American Eskimo,
Aleut, American Indian and Asian American extraction.
(3) Rural telephone companies. A rural telephone company is any
local exchange carrier operating entity to the extent that such
entity--
(i) provides common carrier service to any local exchange carrier
study area that does not include either
(A) any incorporated place of 10,000 inhabitants or more, or any
part thereof, based on the most recently available population
statistics of the Bureau of the Census, or
(B) any territory, incorporated or unincorporated, included in an
urbanized area, as defined by the Bureau of the Census as of August 10,
1993;
[[Page 2344]]
(ii) provides telephone exchange service, including exchange
access, to fewer than 50,000 access lines;
(iii) provides telephone exchange service to any local exchange
carrier study area with fewer than 100,000 access lines; or
(iv) has less than 15 percent of its access lines in communities of
more than 50,000 on the date of enactment of the Telecommunications Act
of 1996.
(4) Affiliate. (i) An individual or entity is an affiliate of an
applicant or of a person holding an attributable interest in an
applicant if such individual or entity--
(A) Directly or indirectly controls or has the power to control the
applicant, or
(B) Is directly or indirectly controlled by the applicant, or
(C) Is directly or indirectly controlled by a third party or
parties that also controls or has the power to control the applicant,
or
(D) Has an ``identity of interest'' with the applicant.
(ii) Nature of control in determining affiliation.
(A) Every business concern is considered to have one or more
parties who directly or indirectly control or have the power to control
it. Control may be affirmative or negative and it is immaterial whether
it is exercised so long as the power to control exists.
Example. An applicant owning 50 percent of the voting stock of
another concern would have negative power to control such concern
since such party can block any action of the other stockholders.
Also, the bylaws of a corporation may permit a stockholder with less
than 50 percent of the voting stock to block any actions taken by
the other stockholders in the other entity. Affiliation exists when
the applicant has the power to control a concern while at the same
time another person, or persons, are in control of the concern at
the will of the party or parties with the power to control.
(B) Control can arise through stock ownership; occupancy of
director, officer or key employee positions; contractual or other
business relations; or combinations of these and other factors. A key
employee is an employee who, because of his/her position in the
concern, has a critical influence in or substantive control over the
operations or management of the concern.
(C) Control can arise through management positions where a
concern's voting stock is so widely distributed that no effective
control can be established.
Example. In a corporation where the officers and directors own
various size blocks of stock totaling 40 percent of the
corporation's voting stock, but no officer or director has a block
sufficient to give him or her control or the power to control and
the remaining 60 percent is widely distributed with no individual
stockholder having a stock interest greater than 10 percent,
management has the power to control. If persons with such management
control of the other entity are persons with attributable interests
in the applicant, the other entity will be deemed an affiliate of
the applicant.
(iii) Identity of interest between and among persons. Affiliation
can arise between or among two or more persons with an identity of
interest, such as members of the same family or persons with common
investments. In determining if the applicant controls or has the power
to control a concern, persons with an identity of interest will be
treated as though they were one person.
Example. Two shareholders in Corporation Y each have
attributable interests in the same PCS application. While neither
shareholder has enough shares to individually control Corporation Y,
together they have the power to control Corporation Y. The two
shareholders with these common investments (or identity in interest)
are treated as though they are one person and Corporation Y would be
deemed an affiliate of the applicant.
(A) Spousal affiliation. Both spouses are deemed to own or control
or have the power to control interests owned or controlled by either of
them, unless they are subject to a legal separation recognized by a
court of competent jurisdiction in the United States. In calculating
their net worth, investors who are legally separated must include their
share of interests in property held jointly with a spouse.
(B) Kinship affiliation. Immediate family members will be presumed
to own or control or have the power to control interests owned or
controlled by other immediate family members. In this context
``immediate family member'' means father, mother, husband, wife, son,
daughter, brother, sister, father- or mother-in-law, son- or daughter-
in-law, brother- or sister-in-law, step-father or -mother, step-brother
or -sister, step-son or -daughter, half brother or sister. This
presumption may be rebutted by showing that the family members are
estranged, the family ties are remote, or the family members are not
closely involved with each other in business matters.
Example. A owns a controlling interest in Corporation X. A's
sister-in-law, B, has an attributable interest in a PCS application.
Because A and B have a presumptive kinship affiliation, A's interest
in Corporation Y is attributable to B, and thus to the applicant,
unless B rebuts the presumption with the necessary showing.
(iv) Affiliation through stock ownership. (A) An applicant is
presumed to control or have the power to control a concern if he or she
owns or controls or has the power to control 50 percent or more of its
voting stock.
(B) An applicant is presumed to control or have the power to
control a concern even though he or she owns, controls or has the power
to control less than 50 percent of the concern's voting stock, if the
block of stock he or she owns, controls or has the power to control is
large as compared with any other outstanding block of stock.
(C) If two or more persons each owns, controls or has the power to
control less than 50 percent of the voting stock of a concern, such
minority holdings are equal or approximately equal in size, and the
aggregate of these minority holdings is large as compared with any
other stock holding, the presumption arises that each one of these
persons individually controls or has the power to control the concern;
however, such presumption may be rebutted by a showing that such
control or power to control, in fact, does not exist.
(v) Affiliation arising under stock options, convertible
debentures, and agreements to merge. Stock options, convertible
debentures, and agreements to merge (including agreements in principle)
are generally considered to have a present effect on the power to
control the concern. Therefore, in making a size determination, such
options, debentures, and agreements are generally treated as though the
rights held thereunder had been exercised. However, an affiliate cannot
use such options and debentures to appear to terminate its control over
another concern before it actually does so.
Example 1. If company B holds an option to purchase a
controlling interest in company A, who holds an attributable
interest in a PCS application, the situation is treated as though
company B had exercised its rights and had come owner of a
controlling interest in company A. The gross revenues of company B
must be taken into account in determining the size of the applicant.
Example 2. If a large company, BigCo, holds 70% (70 of 100
outstanding shares) of the voting stock of company A, who holds an
attributable interest in a PCS application, and gives a third party,
SmallCo, an option to purchase 50 of the 70 shares owned by BigCo,
BigCo will be deemed to be an affiliate of company A, and thus the
applicant, until SmallCo actually exercises its option to purchase
such shares. In order to prevent BigCo from circumventing the intent
of the rule which requires such options to be considered on a fully
diluted basis, the option is not considered to have present effect
in this case.
Example 3. If company A has entered into an agreement to merge
with company B in
[[Page 2345]]
the future, the situation is treated as though the merger has taken
place.
(vi) Affiliation under voting trusts. (A) Stock interests held in
trust shall be deemed controlled by any person who holds or shares the
power to vote such stock, to any person who has the sole power to sell
such stock, and to any person who has the right to revoke the trust at
will or to replace the trustee at will.
(B) If a trustee has a familial, personal or extra-trust business
relationship to the grantor or the beneficiary, the stock interests
held in trust will be deemed controlled by the grantor or beneficiary,
as appropriate.
(C) If the primary purpose of a voting trust, or similar agreement,
is to separate voting power from beneficial ownership of voting stock
for the purpose of shifting control of or the power to control a
concern in order that such concern or another concern may meet the
Commission's size standards, such voting trust shall not be considered
valid for this purpose regardless of whether it is or is not recognized
within the appropriate jurisdiction.
(vii) Affiliation through common management. Affiliation generally
arises where officers, directors, or key employees serve as the
majority or otherwise as the controlling element of the board of
directors and/or the management of another entity.
(viii) Affiliation through common facilities. Affiliation generally
arises where one concern shares office space and/or employees and/or
other facilities with another concern, particularly where such concerns
are in the same or related industry or field of operations, or where
such concerns were formerly affiliated, and through these sharing
arrangements one concern has control, or potential control, of the
other concern.
(ix) Affiliation through contractual relationships. Affiliation
generally arises where one concern is dependent upon another concern
for contracts and business to such a degree that one concern has
control, or potential control, of the other concern.
(x) Affiliation under joint venture arrangements. (A) A joint
venture for size determination purposes is an association of concerns
and/or individuals, with interests in any degree or proportion, formed
by contract, express or implied, to engage in and carry out a single,
specific business venture for joint profit for which purpose they
combine their efforts, property, money, skill and knowledge, but not on
a continuing or permanent basis for conducting business generally. The
determination whether an entity is a joint venture is based upon the
facts of the business operation, regardless of how the business
operation may be designated by the parties involved. An agreement to
share profits/losses proportionate to each party's contribution to the
business operation is a significant factor in determining whether the
business operation is a joint venture.
(B) The parties to a joint venture are considered to be affiliated
with each other. Nothing in this subsection shall be construed to
define a small business consortium, for purposes of determining status
as a designated entity, as a joint venture under attribution standards
provided in this section.
(xi) Exclusion from affiliation coverage. For purposes of this
section, Indian tribes or Alaska Regional or Village Corporations
organized pursuant to the Alaska Native Claims Settlement Act (43
U.S.C. 1601 et seq.), or entities owned and controlled by such tribes
or corporations, are not considered affiliates of an applicant (or
licensee) that is owned and controlled by such tribes, corporations or
entities, and that otherwise complies with the requirements of this
section, except that gross revenues derived from gaming activities
conducted by affiliate entities pursuant to the Indian Gaming
Regulatory Act (25 U.S.C. 2701 et seq.) will be counted in determining
such applicant's (or licensee's) compliance with the financial
requirements of this section, unless such applicant establishes that it
will not receive a substantial unfair competitive advantage because
significant legal constraints restrict the applicant's ability to
access such gross revenues.
(c) The Commission may set aside specific licenses for which only
eligible designated entities, as specified by the Commission, may bid.
(d) The Commission may permit partitioning of service areas in
particular services for eligible designated entities.
(e) Bidding credits. (1) The Commission may award bidding credits
(i.e., payment discounts) to eligible designated entities. Competitive
bidding rules applicable to individual services will specify the
designated entities eligible for bidding credits, the licenses for
which bidding credits are available, the amounts of bidding credits and
other procedures.
(2) Size of bidding credits. A winning bidder that qualifies as a
small business or a consortium of small businesses may use the
following bidding credits corresponding to their respective average
gross revenues for the preceding 3 years:
(i) Businesses with average gross revenues for the preceding years,
3 years not exceeding $3 million are eligible for bidding credits of 35
percent;
(ii) Businesses with average gross revenues for the preceding
years, 3 years not exceeding $15 million are eligible for bidding
credits of 25 percent; and
(iii) Businesses with average gross revenues for the preceding
years, 3 years not exceeding $40 million are eligible for bidding
credits of 15 percent.
(f) Installment payments. The Commission may permit small
businesses (including small businesses owned by women, minorities, or
rural telephone companies that qualify as small businesses) and other
entities determined to be eligible on a service-specific basis, which
are high bidders for licenses specified by the Commission, to pay the
full amount of their high bids in installments over the term of their
licenses pursuant to the following:
(1) Unless otherwise specified by public notice, each eligible
applicant paying for its license(s) on an installment basis must
deposit by wire transfer in the manner specified in Sec. 1.2107(b)
sufficient additional funds as are necessary to bring its total
deposits to ten (10) percent of its winning bid(s) within ten (10) days
after the Commission has declared it the winning bidder and closed the
bidding. Failure to remit the required payment will make the bidder
liable to pay a default payment pursuant to Sec. 1.2104(g)(2).
(2) Within ten (10) days of the conditional grant of the license
application of a winning bidder eligible for installment payments, the
licensee shall pay another ten (10) percent of the high bid, thereby
commencing the eligible licensee's installment payment plan. Failure to
remit the required payment will make the bidder liable to pay default
payments pursuant to Sec. 1.2104(g)(2).
(3) Upon grant of the license, the Commission will notify each
eligible licensee of the terms of its installment payment plan and that
it must execute a promissory note and security agreement as a condition
of the installment payment plan. Unless other terms are specified in
the rules of particular services, such plans will:
(i) Impose interest based on the rate of U.S. Treasury obligations
(with maturities closest to the duration of the license term) at the
time of licensing;
(ii) Allow installment payments for the full license term;
[[Page 2346]]
(iii) Begin with interest-only payments for the first two years;
and
(iv) Amortize principal and interest over the remaining term of the
license.
(4) A license granted to an eligible entity that elects installment
payments shall be conditioned upon the full and timely performance of
the licensee's payment obligations under the installment plan.
(i) Any licensee that fails to submit payment on an installment
obligation will automatically have an additional ninety (90) days in
which to submit its required payment without being considered
delinquent. Any licensee making its required payment during this period
will be assessed a late payment fee equal to five percent (5%) of the
amount of the past due payment. Late fees assessed under this paragraph
will accrue on the next business day following the payment due date.
Payments made at the close of any grace period will first be applied to
satisfy any lender advances as required under each licensee's ``Note
and Security Agreement.'' Afterwards, payments will be applied in the
following order: late charges, interest charges, principal payments.
(ii) If any licensee fails to make the required payment at the
close of the 90-day period set forth in paragraph (i) of this section,
the licensee will automatically be provided with a subsequent 90-day
grace period. Any licensee making a required payment during this
subsequent period will be assessed a late payment fee equal to ten
percent (10%) of the amount of the past due payment. Licensees shall
not be required to submit any form of request in order to take
advantage of the initial 90-day non-delinquency period and subsequent
automatic 90-day grace period. All licensees that avail themselves of
the automatic grace period must pay the required late fee(s), all
interest accrued during the non-delinquency and grace periods, and the
appropriate scheduled payment with the first payment made following the
conclusion of the grace period.
(iii) If an eligible entity making installment payments is more
than one hundred and eighty (180) days delinquent in any payment, it
shall be in default.
(iv) Any eligible entity that submits an installment payment after
the due date but fails to pay any late fee, interest or principal at
the close of the 90-day non-delinquency period and subsequent automatic
grace period will be declared in default, its license will
automatically cancel, and will be subject to debt collection
procedures.
(g) The Commission may establish different upfront payment
requirements for categories of designated entities in competitive
bidding rules of particular auctionable services.
(h) The Commission may offer designated entities a combination of
the available preferences or additional preferences.
(i) Designated entities must describe on their long-form
applications how they satisfy the requirements for eligibility for
designated entity status, and must list and summarize on their long-
form applications all agreements that effect designated entity status,
such as partnership agreements, shareholder agreements, management
agreements and other agreements, including oral agreements, which
establish that the designated entity will have both de facto and de
jure control of the entity. Such information must be maintained at the
licensees' facilities or by their designated agents for the term of the
license in order to enable the Commission to audit designated entity
eligibility on an ongoing basis.
(j) The Commission may, on a service-specific basis, permit
consortia, each member of which individually meets the eligibility
requirements, to qualify for any designated entity provisions.
(k) The Commission may, on a service-specific basis, permit
publicly-traded companies that are owned by members of minority groups
or women to qualify for any designated entity provisions.
(l) Audits. (1) Applicants and licensees claiming eligibility under
this section shall be subject to audits by the Commission, using in-
house and contract resources. Selection for audit may be random, on
information, or on the basis of other factors.
(2) Consent to such audits is part of the certification included in
the short-form application (FCC Form 175). Such consent shall include
consent to the audit of the applicant's or licensee's books, documents
and other material (including accounting procedures and practices)
regardless of form or type, sufficient to confirm that such applicant's
or licensee's representations are, and remain, accurate. Such consent
shall include inspection at all reasonable times of the facilities, or
parts thereof, engaged in providing and transacting business, or
keeping records regarding FCC-licensed service and shall also include
consent to the interview of principals, employees, customers and
suppliers of the applicant or licensee.
(m) Gross revenues. Gross revenues shall mean all income received
by an entity, whether earned or passive, before any deductions are made
for costs of doing business (e.g., cost of goods sold), as evidenced by
audited financial statements for the relevant number of most recently
completed calendar years or, if audited financial statements were not
prepared on a calendar-year basis, for the most recently completed
fiscal years preceding the filing of the applicant's short-form (FCC
Form 175). If an entity was not in existence for all or part of the
relevant period, gross revenues shall be evidenced by the audited
financial statements of the entity's predecessor-in-interest or, if
there is no identifiable predecessor-in-interest, unaudited financial
statements certified by the applicant as accurate. When an applicant
does not otherwise use audited financial statements, its gross revenues
may be certified by its chief financial officer or its equivalent and
must be prepared in accordance with Generally Accepted Accounting
Principles.
11. Section 1.2111 is amended by revising paragraphs (c) and (d)
and adding paragraph (e) to read as follows:
Sec. 1.2111 Assignment or transfer of control: unjust enrichment.
* * * * *
(c) Unjust enrichment payment: installment financing. (1) If a
licensee that utilizes installment financing under this section seeks
to assign or transfer control of its license to an entity not meeting
the eligibility standards for installment payments, the licensee must
make full payment of the remaining unpaid principal and any unpaid
interest accrued through the date of assignment or transfer as a
condition of approval.
(2) If a licensee that utilizes installment financing under this
section seeks to make any change in ownership structure that would
result in the licensee losing eligibility for installment payments, the
licensee shall first seek Commission approval and must make full
payment of the remaining unpaid principal and any unpaid interest
accrued through the date of such change as a condition of approval. A
licensee's (or other attributable entity's) increased gross revenues or
increased total assets due to nonattributable equity investments, debt
financing, revenue from operations or other investments, business
development or expanded service shall not be considered to result in
the licensee losing eligibility for installment payments.
(3) If a licensee seeks to make any change in ownership that would
result in the licensee qualifying for a less favorable installment plan
under this section, the licensee shall seek
[[Page 2347]]
Commission approval and must adjust its payment plan to reflect its new
eligibility status. A licensee may not switch its payment plan to a
more favorable plan.
(d) Unjust enrichment payment: bidding credits. (1) A licensee that
utilizes a bidding credit, and that during the initial term seeks to
assign or transfer control of a license to an entity that does not meet
the eligibility criteria for a bidding credit, will be required to
reimburse the U.S. Government for the amount of the bidding credit,
plus interest based on the rate for ten year U.S. Treasury obligations
applicable on the date the license was granted, as a condition of
Commission approval of the assignment or transfer. If, within the
initial term of the license, a licensee that utilizes a bidding credit
seeks to assign or transfer control of a license to an entity that is
eligible for a lower bidding credit, the difference between the bidding
credit obtained by the assigning party and the bidding credit for which
the acquiring party would qualify, plus interest based on the rate for
ten year U.S. treasury obligations applicable on the date the license
is granted, must be paid to the U.S. Government as a condition of
Commission approval of the assignment or transfer. If, within the
initial term of the license, a licensee that utilizes a bidding credit
seeks to make any ownership change that would result in the licensee
losing eligibility for a bidding credit (or qualifying for a lower
bidding credit), the amount of the bidding credit (or the difference
between the bidding credit originally obtained and the bidding credit
for which the restructured licensee would qualify), plus interest based
on the rate for ten year U.S. treasury obligations applicable on the
date the license is granted, must be paid to the U.S. Government as a
condition of Commission approval of the assignment or transfer.
(2) Payment schedule. (i) The amount of payments made pursuant to
paragraph (d)(1) of this section will be reduced over time as follows:
(A) A transfer in the first two years of the license term will
result in a forfeiture of 100 percent of the value of the bidding
credit (or in the case of very small businesses transferring to small
businesses, 100 percent of the difference between the bidding credit
received by the former and the bidding credit for which the latter is
eligible);
(B) A transfer in year 3 of the license term will result in a
forfeiture of 75 percent of the value of the bidding credit;
(C) A transfer in year 4 of the license term will result in a
forfeiture of 50 percent of the value of the bidding credit;
(D) A transfer in year 5 of the license term will result in a
forfeiture of 25 percent of the value of the bidding credit; and
(E) for a transfer in year 6 or thereafter, there will be no
payment.
(ii) These payments will have to be paid to the United States
Treasury as a condition of approval of the assignment, transfer, or
ownership change.
(e) Unjust enrichment: partitioning and disaggregation. (1)
Installment payments. Licensees making installment payments, that
partition their licenses or disaggregate their spectrum to entities not
meeting the eligibility standards for installment payments, will be
subject to the provisions concerning unjust enrichment as set forth in
this section.
(2) Bidding credits. Licensees that received a bidding credit that
partition their licenses or disaggregate their spectrum to entities not
meeting the eligibility standards for such a bidding credit, will be
subject to the provisions concerning unjust enrichment as set forth in
this section.
(3) Apportioning unjust enrichment payments. Unjust enrichment
payments for partitioned license areas shall be calculated based upon
the ratio of the population of the partitioned license area to the
overall population of the license area and by utilizing the most recent
census data. Unjust enrichment payments for disaggregated spectrum
shall be calculated based upon the ratio of the amount of spectrum
disaggregated to the amount of spectrum held by the licensee.
12. Section 1.2112 is added to read as follows:
Sec. 1.2112 Ownership disclosure requirements for short- and long-form
applications.
(a) Each application for a license or authorization or for consent
to assign or transfer control of a license or authorization shall
disclose fully the real party or parties in interest and must include
in an exhibit the following information:
(1) A list of any FCC-regulated business 10 percent or more of
whose stock, warrants, options or debt securities are owned by the
applicant or an officer, director, attributable stockholder or key
management personnel of the applicant. This list must include a
description of each such business's principal business and a
description of each such business's relationship to the applicant;
(2) A list of any party holding a 10 percent or greater interest in
the applicant, including the specific amount of the interest;
(3) A list of any party holding a 10 percent or greater interest in
any entity holding or applying for any FCC-regulated business in which
a 10 percent or more interest is held by another party which holds a 10
percent or more interest in the applicant (e.g., If company A owns 10
percent of Company B (the applicant) and 10 percent of Company C then
Companies A and C must be listed on Company B's application;
(4) A list of the names, addresses, and citizenship of any party
holding 10 percent or more of each class of stock, warrants, options or
debt securities together with the amount and percentage held;
(5) A list of the names, addresses, and citizenship of all
controlling interests of the applicants, as set forth in Sec. 1.2110;
(6) In the case of a general partnerships, the name, address and
citizenship of each partner, and the share or interest participation in
the partnership;
(7) In the case of a limited partnerships, the name, address and
citizenship of each limited partner whose interest in the applicant is
equal to or greater than 10 percent (as calculated according to the
percentage of equity paid in and the percentage of distribution of
profits and losses);
(8) In the case of a limited liability corporation, the name,
address and citizenship of each of its members; and
(9) A list of all parties holding indirect ownership interests in
the applicant, as determined by successive multiplication of the
ownership percentages for each link in the vertical ownership chain,
that equals 10 percent or more of the applicant, except that if the
ownership percentage for an interest in any link in the chain exceeds
50 percent or represents actual control, it shall be treated and
reported as if it were a 100 percent interest.
(b) In addition to the information required under paragraph (a) of
this section, each applicant for a license or authorization claiming
status as a small business shall, as an exhibit to its long-form
application:
(1) Disclose separately and in the aggregate the gross revenues,
computed in accordance with Sec. 1.2110, for each of the following: the
applicant and its affiliates, the applicant's attributable investors,
affiliates of its attributable investors, and, if a consortium of small
businesses, the members comprising the consortium;
(2) List and summarize all agreements or instruments (with
appropriate references to specific provisions in the
[[Page 2348]]
text of such agreements and instruments) that support the applicant's
eligibility as a small business under the applicable designated entity
provisions, 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, franchise agreements, and any other relevant agreements
(including letters of intent), oral or written; and
(3) List and summarize any investor protection agreements,
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.
13. Section 1.2113 is added to read as follows:
Sec. 1.2113 Construction prior to grant of application.
Subject to the provisions of this section, applicants for licenses
awarded by competitive bidding may construct facilities to provide
service prior to grant of their applications, but must not operate such
facilities until the FCC grants an authorization. If the conditions
stated in this section are not met, applicants must not begin to
construct facilities for licenses subject to competitive bidding.
(a) When applicants may begin construction. An applicant may begin
construction of a facility upon release of the Public Notice listing
the post-auction long-form application for that facility as acceptable
for filing.
(b) Notification to stop. If the FCC for any reason determines that
construction should not be started or should be stopped while an
application is pending, and so notifies the applicant, orally (followed
by written confirmation) or in writing, the applicant must not begin
construction or, if construction has begun, must stop construction
immediately.
(c) Assumption of risk. Applicants that begin construction pursuant
to this section before receiving an authorization do so at their own
risk and have no recourse against the United States for any losses
resulting from:
(1) Applications that are not granted;
(2) Errors or delays in issuing public notices;
(3) Having to alter, relocate or dismantle the facility; or
(4) Incurring whatever costs may be necessary to bring the facility
into compliance with applicable laws, or FCC rules and orders.
(d) Conditions. Except as indicated, all pre-grant construction is
subject to the following conditions:
(1) The application does not include a request for a waiver of one
or more FCC rules;
(2) For any construction or alteration that would exceed the
requirements of Sec. 17.7 of this chapter, the licensee has notified
the appropriate Regional Office of the Federal Aviation Administration
(FAA Form 7460-1), filed a request for antenna height clearance and
obstruction marking and lighting specifications (FCC Form 854) with the
FCC, PRB, Support Services Branch, Gettysburg, PA 17325;
(3) The applicant has indicated in the application that the
proposed facility would not have a significant environmental effect, in
accordance with Secs. 1.1301 through 1.1319;
(4) Under applicable international agreements and rules in this
part, individual coordination of the proposed channel assignment(s)
with a foreign administration is not required; and
(5) Any service-specific restrictions not listed herein.
PART 21--DOMESTIC PUBLIC FIXED RADIO SERVICES
14. The authority citation for part 21 continues to read as
follows:
Authority: Secs. 1, 2, 4, 201-205, 208, 215, 218, 303, 307, 313,
403, 404, 410, 602, 48 Stat. as amended, 1064, 1066, 1070-1073,
1076, 1077, 1080, 1082, 1083, 1087, 1094, 1098, 1102; 47 U.S.C. 151,
154, 201-205, 208, 215, 218, 303, 307, 313, 314, 403, 404, 602; 47
U.S.C. 552, 554, unless otherwise noted.
15. Section 21.959 is amended by revising paragraph (a)(2) to read
as follows:
Sec. 21.959 Withdrawal, default, and disqualification.
* * * * *
(a) * * *
(2) Default or disqualification after close of auction. See
Sec. 1.2104 (g)(2) of this chapter.
* * * * *
16. Section 21.960 is amended by revising paragraphs (b)(4) and
(d)(1) to read as follows:
Sec. 21.960 Designated entity provisions for MDS.
* * * * *
(b) * * *
(4) Conditions and obligations. See Sec. 1.2110(f)(4) of this
chapter.
* * * * *
(d) * * *
(1) Unjust enrichment. See Sec. 1.2111 of this chapter.
* * * * *
PART 24--PERSONAL COMMUNICATIONS SERVICES
17. The authority citation for part 24 continues to read as
follows:
Authority: 47 U.S.C. Sections 154, 301, 302, 303, and 332,
unless otherwise noted.
18. Section 24.304 is amended by revising paragraph (a)(2) to read
as follows:
Sec. 24.304 Withdrawal, default and disqualification penalties.
(a) * * *
(2) Default or disqualification after close of auction. See
Sec. 1.2104(g)(2) of this chapter.
* * * * *
19. Section 24.309 is amended by revising paragraphs (b) and (f) to
read as follows:
Sec. 24.309 Designated entities
* * * * *
(b) Designated entities will be eligible for certain special
narrowband PCS provisions as follows:
(1) Installment payments. (i) Small businesses, including small
businesses owned by members of minority groups and women, will be
eligible to pay the full amount of their winning bids on any regional,
MTA or BTA license in installments over the term of the license
pursuant to the terms set forth in Sec. 1.2110(g) of this chapter.
(ii) Businesses owned by members of minority groups and women that
are winning bidders for the regional licenses indicated by an (**) in
Sec. 24.129 may pay the full amount of their winning bids (less the
applicable bidding credit and down payment) in installments with
(A) Interest imposed based on the rate for ten-year U.S. Treasury
obligations applicable on the date the license is granted, plus 2.5
percent;
(B) Interest-only payments for the first two years; and
(C) Principal and interest payments amortized over the remaining
eight years of the license.
(2) Bidding credits. Businesses owned by member of minority groups
and women, including small businesses owned by members of minority
groups and women, will be eligible for a twenty-five (25) percent
bidding credit when bidding on the following licenses:
(i) The nationwide licenses on Channel 5, Channel 8 and Channel 11;
and
(ii) All MTA licenses on Channel 19, Channel 22, Channel 24; and
(iii) All BTA licenses on Channel 26. This bidding credit will
reduce by 25 percent the bid price that businesses owned by members of
minority groups
[[Page 2349]]
and women will be required to pay to obtain a license. Businesses owned
by women and/or minorities, including small businesses owned by women
and/or minorities will be eligible for a forty (40) percent bidding
credit when bidding on all regional licenses on Channel 13 and Channel
17. In Sec. 24.129, the licenses that will be eligible for 25 percent
bidding credits are indicated by an (*); the licenses that will be
eligible for 40 percent bidding credits are indicated by an (**).
* * * * *
(f) Unjust enrichment. Designated entities using installment
payments, bidding credits or tax certificates to obtain a narrowband
PCS license will be subject to the unjust enrichment provisions
contained in Sec. 1.2111 of this chapter.
20. Section 24.704 is amended by revising paragraph (a)(2) to read
as follows:
Sec. 24.704 Withdrawal, default and disqualification penalties.
(a) * * *
(2) Default or disqualification after close of auction. See
Sec. 1.2104(g)(2) of this chapter.
* * * * *
21. Section 24.711 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 24.711 Upfront payments, down payments and installment payments
for licenses for frequency Block C.
* * * * *
(b) Installment payments. Each eligible licensee of frequency Block
C or F may pay the remaining 90 percent of the net auction price for
the license in installment payments pursuant to Sec. 1.2110(g) of this
chapter and under the following terms:
(1) For an eligible licensee with gross revenues exceeding $75
million (calculated in accordance with Sec. 24.709(a)(2) and (b)) in
each of the two preceding years (calculated in accordance with
Sec. 24.720(f)), interest shall be imposed based on the rate for ten-
year 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.
(2) For an eligible licensee with gross revenues not exceeding $75
million (calculated in accordance with Sec. 24.709(a)(2) and (b)) in
each of the two preceding years, interest shall be imposed based on the
rate for ten-year 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.
(3) 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 ten-year U.S. Treasury obligations applicable on the date
the license is granted, plus 2.5 percent; payments shall include
interest only for the first two years and payments of interest and
principal amortized over the remaining eight years of the license term.
(4) For an eligible licensee that qualifies as a business owned by
members of minority groups and/or women, interest shall be imposed
based on the rate for ten-year U.S. Treasury obligations applicable on
the date the license is granted; payments shall include interest only
for the first three years and payments of interest and principal
amortized over the remaining seven years of the license term.
(5) For an eligible licensee that qualifies as a small business
owned by members of minority groups and/or women or as a consortium of
small business owned by members of minority groups and/or women,
interest shall be imposed based on the rate for ten-year 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.
(c) Unjust enrichment. See Sec. 1.2111 of this chapter.
22. Section 24.712 is amended by adding paragraph (c) to read as
follows:
Sec. 24.712 Bidding credits for licenses for frequency Block C.
* * * * *
(c) Unjust enrichment. See Sec. 1.2111 of this chapter.
23. Section 24.716 is amended by revising paragraph (c) and (d) to
read as follows:
Sec. 24.716 Upfront payments, down payments, and installment payments
for licenses for frequency Block F.
* * * * *
(c) Late installment payments. See Sec. 1.2110(f)(4) of this
chapter.
(d) Unjust enrichment. See Sec. 1.2111 of this chapter.
24. Section 24.717 is amended by revising paragraph (c) to read as
follows:
Sec. 24. 717 Bidding credits for licenses for frequency Block F.
* * * * *
(c) Unjust enrichment. See Sec. 1.2111 of this chapter.
PART 27--WIRELESS COMMUNICATIONS SERVICE
25. The authority citation for part 27 continues to read as
follows:
Authority: 47 U.S.C. Sections 154, 301, 302, 303, 307, 309 and
332, unless otherwise noted.
26. Section 27.203 is amended by revising paragraph (b) to read as
follows:
Sec. 27.203 Withdrawal, default and disqualification payments.
* * * * *
(b) Default or disqualification after close of auction. See
Sec. 1.2104(g)(2) of this chapter.
27. Section 27.209 is amended by revising paragraph (d) to read as
follows:
Sec. 27.209 Designated entities; bidding credits; unjust enrichment.
* * * * *
(d) Unjust enrichment. See Sec. 1.2111 of this chapter.
PART 90--PRIVATE LAND MOBILE RADIO SERVICES
28. The authority citation for part 90 continues to read as
follows:
Authority: Secs. 4, 251-2, 303, 309 and 332, 48 Stat. 1066,
1082, as amended; 47 U.S.C. 154, 251-2, 303, 309 and 332, unless
otherwise noted.
29. Section 90.805 is amended by revising paragraph (c) to read as
follows:
Sec. 90.805 Withdrawal, default and disqualification payments.
* * * * *
(c) Default or disqualification after close of auction. See
Sec. 1.2104 (g)(2) of this chapter.
30. Section 90.812 is amended by revising paragraphs (a) and (b) to
read as follows:
Sec. 90.812 Installment payments for licensees won by small
businesses.
(a) Installment payments. See Sec. 1.2110(f)(4) of this chapter.
(b) Unjust enrichment. See Sec. 1.2111(c) of this chapter.
PART 95--PERSONAL RADIO SERVICES
31. The authority citation for part 95 continues to read as
follows:
Authority: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47
U.S.C. 154, 303.
32. Section 95.816 is amended by revising paragraphs (c)(6) and (e)
to read as follows:
Sec. 95.816 Competitive bidding proceedings.
* * * * *
[[Page 2350]]
(c) * * *
(6) Default or disqualification. See Sec. 1.2104 (g)(2) of this
chapter.
* * * * *
(e) Unjust enrichment. See Sec. 1.2111 of this chapter.
* * * * *
[FR Doc. 98-823 Filed 1-14-98; 8:45 am]
BILLING CODE 6712-01-P