[Federal Register Volume 59, Number 165 (Friday, August 26, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-21016] [[Page Unknown]] [Federal Register: August 26, 1994] ======================================================================= ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 24 [PP Docket No. 93-253; FCC 94-219] Implementation of Section 309(j) of the Communications Act-- Competitive Bidding AGENCY: Federal Communications Commission. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: In this Third Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, the Commission responds to petitions for reconsideration or clarification of the rules and policies adopted in the Third Report and Order in this proceeding, which sets forth the service specific competitive bidding rules for narrowband PCS. In this regard, the Commission makes certain modifications to the rules adopted on the Third Report and Order. These rules will promote the development and rapid deployment of narrowband PCS technologies, products and services for the benefit of the public. These rules also will promote economic opportunity and competition, and disseminate licenses among a wide variety of applicants, including small businesses and businesses owned by members of minority groups and women. This action will result in recovery for the public of a portion of the value of the public spectrum make available for commercial use. EFFECTIVE DATE: September 26, 1994. FOR FURTHER INFORMATION CONTACT: Jackie Chorney, Office of Plans and Policy, (202) 418-2030. SUPPLEMENTARY INFORMATION: This Third Memorandum Opinion and Order and Further Notice of Proposed Rulemaking in PP Docket No. 93-253, adopted August 16, 1994, and released August 17, 1994, is available for inspection and copying during normal business hours in the FCC Dockets Branch, Room 230, 1919 M Street N.W., Washington, D.C. The complete text may be purchased from the Commission's copy contractor, International Transcription Service, Inc., 2100 M Street, N.W., Suite 140, Washington, D.C. 20037, telephone (202) 857-3800. Paperwork Reduction Act In the Third Memorandum Opinion and Order and Further Notice of Proposed Rulemaking in PP Docket No. 93-253, the Commission has amended 47 CFR Part 24 which contain rules and requirements governing the award of narrowband PCS licenses through a system of competitive bidding. Applicants are required to file certain information so that the Commission can determine whether the applicants are legally, technically, and financially qualified to be licensed. Affected members of the public are any members of the public who want to become a narrowband PCS licensee. Implementation of the rules contained in the Third Memorandum Opinion and Order and Further Notice of Proposed Rulemaking will impose reporting and recordkeeping requirements on certain members of the public. The Federal Communications Commission will submit an information collection request to OMB for review and clearance under the Paperwork Reduction Act of 1980, 44 U.S.C. 3507. Persons wishing to comment on this information collection should contact Timothy Fain, Office of Management and Budget, Room 3225, New Executive Office Building, Washington, D.C. 20503, (202) 395-3561. For further information, contact Judy Boley, Federal Communications Commission, (202) 418-0210. In the Matter of Implementation of Section 309(j) of the Communications Act--Competitive Bidding, Narrowband PCS, PP Docket No. 93-253 and Amendment of the Commission's Rules to Establish New Narrowband Personal Communication Services, GEN Docket No. 90-314, ET Docket No. 92-100. Third Memorandum Opinion and Order and Further Notice of Proposed Rulemaking Adopted: August 16, 1994. Released: August 17, 1994. Comment Date: September 16, 1994. Reply Comment Date: October 3, 1994. By the Commission: Table of Contents Paragraph I. Introduction.............................................. 1 II. Auction Design........................................... 5 A. Bidding Procedures...................................... 5 B. Minimum Opening Bid..................................... 10 C. Activity and Stopping Rules............................. 12 D. Release of Bidder Information........................... 16 E. Filing Procedures....................................... 17 F. Application-Processing Rules............................ 21 III. Rules Prohibiting Settlements and Collusion............. 25 IV. Paging Response Channel Eligibility...................... 32 V. Designated Entity Provisions.............................. 33 A. Definition of Small Business............................ 42 B. Bidding Credits in Regional Narrowband Auctions......... 58 C. Rural Telephone Companies............................... 59 D. Other Designated Entity Decisions....................... 62 VI. Procedural Matters and Ordering Clause................... 64 A. Final Regulatory Flexibility Analysis................... 64 B. Ordering Clause......................................... 68 I. Introduction 1. By this action, we respond to petitions for reconsideration of the Third Report and Order in this proceeding.\1\ The Third Report and Order established service-specific rules for competitive bidding for the award of licenses for Personal Communications Services in the 900 MHz band (narrowband PCS). Seven such petitions were received, as well as three oppositions and comments and one reply.\2\ --------------------------------------------------------------------------- \1\See Third Report and Order in PP Docket No. 93-253, 9 FCC Rcd 2941, 59 FR 26741 (May 24, 1994), (Third Report and Order). \2\Petitions for reconsideration were received from the Association of Independent Designated Entities (AIDE), Mercury Communications, Inc. (Mercury), Paging Network, Inc. (PageNet), Phase One Communications, Inc. (Phase One), the Rural Cellular Association (RCA), Tri-State Radio Co. (Tri-State), and U.S. Intelco Networks, Inc. (USIN). Oppositions or comments were received from United States Telephone Association (USTA), AirTouch Paging (AirTouch), and Paging Network, Inc. (PageNet); a reply was received from American Paging, Inc. (API). --------------------------------------------------------------------------- 2. On August 10, 1993, the Omnibus Budget Reconciliation Act of 1993 (the Budget Act) added a new section 309(j) to the Communications Act of 1934, as amended, 47 U.S.C. 151-173 (the Communications Act). This amendment to the Communications Act gave the Commission express authority to employ competitive bidding procedures to choose from among mutually exclusive applications for initial licenses. The Commission's Second Report and Order established general rules and procedures and a broad menu of competitive bidding methods to be used for all auctionable services.\3\ --------------------------------------------------------------------------- \3\Second Report and Order in PP Docket No. 93-253, 9 FCC Rcd 2348, 59 FR 22980 (May 4, 1994), (Second Report and Order). --------------------------------------------------------------------------- 3. The Third Report and Order established competitive bidding rules for narrowband PCS. The Commission decided that because of the interdependence within certain classes of narrowband PCS licenses and the relatively high expected value of such licenses, where the agency received mutually exclusive applications most narrowband PCS licenses would be awarded through a sequence of simultaneous multiple round auctions. However, we stated that we might alternatively use oral sequential or single round sealed bidding to award certain narrowband PCS licenses if the operational complexity or administrative costs associated with simultaneous auctions proved excessive relative to the expected value of the licenses to be awarded. We stated that in conducting narrowband PCS auctions we would generally follow the payment and procedural rules adopted in the Second Report and Order, and we adopted general procedural and processing rules for the narrowband PCS service based on Parts 22 and 90 of the Commission's rules. We also structured our rules to provide opportunities for small businesses and businesses owned by women and minorities to participate in the auction and in the provision of spectrum based services. 4. On July 29, 1994 we completed the first spectrum auction for the ten available nationwide narrowband PCS licenses. This auction was the first test of the simultaneous multiple round auction design and of our provisions for designated entities. This auction was enormously successful. One indication of the efficiency of the simultaneous multiple round bidding process is the fact that the winning bids were either identical or virtually identical for virtually identical licenses. As we expected, this auction also attracted broad participation by designated entities. Of the 29 registered bidders 9, or 30 percent, indicated status as either minority or woman-owned firms. The strong bidding competition among relatively large firms and incumbent paging companies, however, may have been a factor in the lack of designated entities among the winning bidders. These results have caused us to reexamine some of the auction rules and designated entity provisions previously adopted in the Third Report and Order. In addition, we request comment on a number of possible further changes in the designated entity provisions that might apply to the upcoming MTA and BTA auctions. II. Auction Design A. Bidding Procedures 5. In the Third Report and Order, the Commission noted its earlier findings: (1) That licenses with strong value interdependencies should be auctioned simultaneously, (2) that multiple round auctions will generally yield more efficient allocations of licenses and higher revenues than other auction methodologies because they provide bidders with information regarding other bidders' valuations of licenses, and (3) that simultaneous multiple round auctions become less cost effective as the value of licenses decreases, because they are relatively time-consuming and expensive to implement.\4\ The Commission stated that where the licenses to be auctioned are interdependent and their value is expected to be high, simultaneous multiple round auctions would best achieve the Commission's goals.\5\ We stated, however, that we might use methods other than simultaneous multiple round bidding in cases where license values are expected to be relatively low, where bidder participation is expected to be limited, or where the interdependence of licenses is less significant.\6\ We stated that in selecting the auction method for each narrowband PCS auction, we would balance the advantages of more sophisticated auction methods, such as simultaneous multiple round bidding, with the greater complexity and cost they might entail.\7\ --------------------------------------------------------------------------- \4\Third Report and Order at 12. \5\Id. at 13. \6\Id. at 20. \7\Id. --------------------------------------------------------------------------- 6. In the Third Report and Order the Commission decided to auction the 12.5 kHz unpaired MTA and BTA response channel licenses in a single round sealed bid auction because the value of those licenses is low relative to the cost of conducting more complex auctions. We also stated that because only incumbent paging licensees already serving the license area are eligible to bid on these licenses, sealed bid auctions might help to reduce the likelihood of collusion. We further stated that information about license values from earlier narrowband auctions would also be available to assist bidders in valuing these licenses. Moreover, because under the sealed bid approach bidders cannot be certain that they will be the high bidder on the licenses they seek to obtain, we allowed bidders to bid without risking a default penalty on more than the two licenses in each service area, provided they specify in advance the order in which they wish to be awarded such licenses if they are the high bidder on more than they are permitted to hold.\8\ --------------------------------------------------------------------------- \8\Id. at 29. --------------------------------------------------------------------------- 7. Petitions. Paging Network, Inc. (PageNet) and Tri-State Radio Co. (Tri-State) seek reconsideration of the decision to use single round sealed bid auction procedures for assignment of the 12.5 kHz unpaired licenses.\9\ PageNet and Tri-State assert that the Commission has underestimated the likely value of the response channel licenses.\10\ PageNet and Tri-State also assert that great value interdependence exists among the response channel licenses.\11\ They state that there are likely to be numerous bidders for most licenses.\12\ In this regard, PageNet claims that collusive behavior is no more likely for these licenses than for other narrowband PCS licenses. PageNet and Tri-State question whether bidders for response channel licenses will obtain useful information about license values from previous narrowband PCS auctions. PageNet asserts that license values will vary from one provider and area to another, and that bidders may have no realistic idea as to the value of the licenses.\13\ PageNet claims that the single sealed bid mechanism will require exorbitantly expensive market research on the part of bidders, and the result will still depend on chance.\14\ Further, PageNet states that it is important to choose an auction method which provides useful information on license values to bidders during the auction. Therefore, PageNet supports adopting an alternative auction method that is streamlined to minimize cost and complexity, and recommends an ascending bid multiple round methodology.\15\ --------------------------------------------------------------------------- \9\PageNet Petition at 2; Tri-State Petition at 3. \10\PageNet Petition at 2; Tri-State Petition at 7. \11\PageNet Petition at 5; Tri-State Petition at 3. \12\PageNet Petition at 10; Tri-State Petition at 8. \13\PageNet Petition at 5. \14\Opposition of PageNet at 3. \15\PageNet reserves comment on more specific procedures pending conclusion of the nationwide narrowband PCS and Interactive Video and Data Service (IVDS) auctions. Id. at 6. --------------------------------------------------------------------------- 8. Tri-State claims that the rules mandating single round sealed bidding are deficient from an auction design perspective. Tri-State asserts that these rules are poorly structured to allow bidders to obtain a common frequency across regions, and that under the rules bidders cannot know how to prioritize their bids. Tri-State further claims that the sealed bidding procedures require exceedingly complicated bidding strategies, which necessitate the adoption of a clear reallocation mechanism for defaulted licenses. Alternatively, Tri-State recommends a procedure in which bidders submit sealed bids for a given MTA or BTA without specifying which of the available frequencies the bidder is bidding on. Under Tri-State's recommended approach, winning bidders would be ranked for purposes of frequency selection according to the total amount they bid for all the channels on which they hold winning bids. Tri-State claims that this procedure maximizes the number of multiple MTA/BTA bidders who can obtain a common paging response channel in all markets in which they bid.\16\ Tri-State argues that its proposed auction procedures will level the playing field between bidders for paging response channels and those for regional and nationwide narrowband PCS authorizations, who do not need to aggregate a common frequency across geographic areas.\17\ Tri- State includes a 25 percent bidding credit for minority- and female- owned businesses and small businesses, and states that its plan could be refined by providing that winning bidders pay the highest losing bid for a license.\18\ Tri-State asserts that its proposed auction procedures will ensure that the Commission maximizes revenues from paging response license auctions and allow bidders to set priorities more accurately and to adopt relatively simple bidding strategies.\19\ AirTouch recommends multiple round simultaneous auctions, and suggests that bids for the response channels be in pool form, such that the highest four bidders would receive a license and could agree among themselves as to the licenses to be held by each.\20\ American Paging, Inc. (API) supports multiple-round ascending simultaneous bidding methodologies, at least for the MTA response channel licensing.\21\ --------------------------------------------------------------------------- \16\Tri-State Petition at 12-16. \17\Id. at 17. \18\Id. at 18-20. \19\Id. at 21. \20\Opposition of AirTouch at 7-8. \21\Reply of API at 2. --------------------------------------------------------------------------- 9. Discussion. Petitioners have convinced us that paging response channel licenses may have more value interdependency, and higher value, than was apparent at the time of the Third Report and Order. We also recognize that alternative auction methodologies proposed by petitioners may offer a low-cost auction method with desirable characteristics for auctioning interdependent licenses, and thus may prove superior to the sealed bid approach set forth in the Third Report and Order. In addition, the recent nationwide narrowband auction demonstrated that simultaneous multiple round auctions are easier and less expensive to implement than we earlier anticipated, and thus they may prove to be an appropriate procedure for auctioning the response channel licenses. However, we will defer our decision regarding the auction design for the 12.5 kHz MTA and BTA paging response channels until we have gained further experience with simultaneous multiple round auctions. We will announce our final choice of auction design and procedures for the response channels by Public Notice prior to the auction. B. Minimum Opening Bid 10. In the Third Report and Order, we stated that we believe it is necessary to impose a minimum bid increment to ensure that the auctions conclude within a reasonable period of time in narrowband PCS auctions where simultaneous multiple round bidding is used. The bid increment is the amount or percentage by which the bid must be raised above the previous round's high bid in order to be accepted as a valid bid in the current round. We stated that we might impose a minimum bid increment of 5 percent or $0.01 per MHz per pop, whichever is greater, in narrowband PCS auctions where multiple round bidding is used. We also retained the discretion to vary the minimum bid increments for individual licenses or groups of licenses over the course of an auction.\22\ --------------------------------------------------------------------------- \22\Third Report and Order at 30-32. --------------------------------------------------------------------------- 11. In order to expedite the auction process further, we also reserve the discretion to establish a suggested opening bid or a minimum opening bid on each license in addition to the minimum bid increment.\23\ If we were to adopt minimum opening bids, we anticipate that we would seek expedited comments on any figures proposed. Once a minimum bid is established for a license, initial bids will have to be above that level to be considered valid. The amount of the suggested opening bid or the minimum opening bid, if one is used, will be set forth in the Public Notice announcing the auction. Generally, we will establish suggested opening bids or minimum opening bids in the range of $.03-$.20 per MHz-pop for each license.\24\ A suggested opening bid or minimum opening bid will provide bidders with an incentive to start bidding at a substantial portion of the license value, thus ensuring a rapid conclusion to the auction. --------------------------------------------------------------------------- \23\See ex parte submission of Paul Milgrom, May 19, 1994 and Fifth Report and Order 45, in PP Docket 93-253, FCC No. 94-178, 59 FR 37566 (Jul 29, 1994), (Fifth Report and Order). \24\The number of ``MHz-pops'' is calculated by multiplying the population of the license service area by the amount of spectrum authorized by the license. In its September 1993 Mid-Session Review of the 1994 Budget, the Office of Management and Budget estimated that spectrum auctions would generate $12.6 billion from 1994 through 1998. A 1992 report by the Congressional Budget Office assumed that $2 billion would be raised from competitive bidding in services other than PCS. Thus, the approximate value of 120 MHz of PCS spectrum is placed at $10.6 billion according to these estimates, or 35 cents per pop per MHz. --------------------------------------------------------------------------- C. Activity and Stopping Rules 12. In the Third Report and Order, we stated that when we use the three-stage Milgrom-Wilson activity rule, the auction will move from stage I to stage II when, after three rounds of bidding, the high bid has changed on 5 percent or fewer of the licenses (measured in MHz- pops) being auctioned. Stage III will begin when the high bid has changed on 2 percent or fewer licenses over three rounds.\25\ We conclude after our experience in conducting the nationwide narrowban auction that we may find it important to move the auctions from one stage to the next at a different pace than would occur under this rule. Accordingly, we retain the discretion to determine and announce during the course of an auction when, and if, to move from one auction stage to the next, based on a variety of measures of bidder activity, (e.g., the percentage of licenses on which there are new bids, the number of new bids, and the percentage increase in revenue). Bidders will be notified at least one round prior to the commencement of the next stage of an auction. --------------------------------------------------------------------------- \25\Third Report and Order at n. 16. --------------------------------------------------------------------------- 13. We also stated that in stage III, a bidder would have to be active on 100 percent of the MHz-pops for which it wishes to retain eligibility.\26\ In order to allow bidders greater flexibility, we think that it may be beneficial in some auctions to reduce this figure slightly, but in no case below 90 percent. We will announce the required activity levels for stage III in a Public Notice in advance of each auction. --------------------------------------------------------------------------- \26\See Third Report and Order 38. --------------------------------------------------------------------------- 14. In the Third Report and Order, we stated that where we use the Milgrom-Wilson activity rule we intend to use a simplified waiver procedure whereby bidders will be permitted five automatic waivers from the activity rule during the course of an auction.\27\ A waiver permits a bidder to maintain its eligibility at the same level as in the round for which the waiver is submitted, regardless of the bidder's level of bidding activity in that round. Subsequently, we have concluded based on our experience in conducting the nationwide narrowband auction that fewer waivers may be necessary to maintain the pace of the auction and prevent strategic use of waivers. Consequently, we will allow one automatic waiver from the activity rule during each stage of an auction, or one automatic waiver during a number of bidding rounds specified in a Public Notice. We retain the flexibility, however, to change by Public Notice the number of waivers that will be permitted and the frequency with which they may be exercised by public notice prior to a specific narrowband auction. While we may allow bidders to request proactive waivers that will keep the bidding open, under no circumstances will an automatic waiver prevent an auction from closing. --------------------------------------------------------------------------- \27\Third Report and Order at 40. --------------------------------------------------------------------------- 15. In the Second Report and Order, we retained the discretion to declare by announcement at any point during a multiple round auction that the auction will end after a specified number of additional rounds.\28\ We want to clarify however, that if this procedure is used, we will accept bids in the final rounds only for licenses on which the highest bid increased in at least one of the preceding three rounds. No new bids will be accepted for other licenses.\29\ There are two reasons not to take bids on licenses on which there has been no recent bidding. First, the fact that bidding on an individual license may close will provide an additional incentive to bid actively and thus speed the conclusion of the auction. If bids are accepted on all licenses in the final rounds there is less cost to a bidder in holding back. Second, closing bidding on licenses for which activity has ceased ensures high bidders for those licenses that they will not lose a license without having an opportunity to make a counter-offer.\30\ This reduces the uncertainty associated with aggregating licenses that are worth more to a particular bidder as a package than individually. If final bids are accepted on all licenses, a high bidder on an aggregation of licenses may unexpectedly lose a critical part of the aggregation and have no chance to regain it except in the post-auction market, where bargaining or other transaction costs may be high. --------------------------------------------------------------------------- \28\Second Report and Order at 132. \29\See reply comments of PacBell, appendix to attachment by Milgrom and Wilson at 5. See also Second Report and Order at 130, n.106. \30\Either the auction will close only when bidding ceases on all licenses, so the high bidder will have an opportunity to respond to any new bids, or the Commission will call for final bids but not accept new bids on licenses on which there have been no new bids in the previous three rounds, so no other bidder will have the opportunity to outbid the high bidder in a final round. --------------------------------------------------------------------------- D. Release of Bidder Information 16. We note that in the reconsideration of the Second Report and Order we reserved additional flexibility with respect to the requirement to release information concerning the identity of bidders, which may affect auctions for narrowband PCS licenses. In the Second Memorandum Opinion and Order\31\ we reserved the option to release bidder identities on an auction-by-auction basis, and stated that we would announce by Order and Public Notice prior to each auction whether the identities of bidders would be made public in that auction.\32\ In this regard, we retain the flexibility in the context of narrowband PCS auctions to determine on an auction-by-auction basis whether or not to release bidder identities during the course of the auction. --------------------------------------------------------------------------- \31\Second Memorandum Opinion and Order at 46, in PP Docket No. 93-253, FCC No. 94-215, released Aug 15, 1994, (Second Memorandum Opinion and Order). \32\Second Memorandum Opinion and Order at 46, in PP Docket No. 93-253, FCC No. 94-215, released Aug 15, 1994, (Second Memorandum Opinion and Order). --------------------------------------------------------------------------- E. Filing Procedures 17. Petition. Phase One asserts that the Communications Act permits the FCC to employ competitive bidding procedures only where mutual exclusivity exists, and that consequently the FCC is prohibited from establishing specific auction dates until it has determined that a particular application is mutually exclusive with another.\33\ Phase One states that the FCC must first notify each qualified applicant of its application processing status in advance of scheduling auctions to allow applicants sufficient time to analyze auction strategies and evaluate the competition.\34\ Phase One also states that the FCC is obligated to suspend its auctions until each petition in PP Docket No. 93-253 has been addressed.\35\ Phase One states that our contractor, Tradewinds International, Inc. (Tradewinds) must be prevented from promoting FCC auctions. Because there can be no auctions without mutual exclusivity, according to Phase One the advertising by Tradewinds amounts to false and misleading advertising and raises conflict of interest questions because Tradewinds may benefit if auctions are actually held.\36\ --------------------------------------------------------------------------- \33\Phase One Petition at 2. \34\Id. at 3. \35\Id. at 5. \36\Id. at 5-6. --------------------------------------------------------------------------- 18. AirTouch Paging (AirTouch) asserts in opposition that the Communications Act only prohibits auctioning of a license for which no mutually exclusive applications have been accepted for filing, and not the establishment of auction dates. In fact, AirTouch notes that mutually exclusive applications were received for each of the nationwide narrowband PCS licenses.\37\ PacBell states that there is no legal basis for Phase One's argument that the Commission must delay announcing auction dates until mutual exclusivity has been established.\38\ --------------------------------------------------------------------------- \37\Opposition of Airtouch at 4. \38\Opposition of PacBell at 8. --------------------------------------------------------------------------- 19. Discussion. The Budget Act provides that if applications are not mutually exclusive no auction will be held.\39\ We have found, however, that it is important to begin planning for auctions as early as possible to assure that they will run smoothly. To maintain an expeditious auctioning and licensing schedule it is necessary, for instance, to reserve sites for auctions before all applications have been received. Further, we believe that it is important that we schedule auctions far enough in advance to provide applicants with ample time to attract financing and plan their bidding strategies. In any event, we have previously indicated that we will cancel a scheduled auction if we do not receive mutually exclusive applications.\40\ Consequently we believe that our auction schedule and procedures are fully consistent with the provisions of the Budget Act. --------------------------------------------------------------------------- \39\47 U.S.C. Sec. 309(j)(1). \40\See Second Report and Order at 165. In fact, 29 applicants are eligible to bid for nationwide narrowband PCS licenses; at least 24 applicants are eligible to bid on each of the ten licenses. Thus, mutual exclusivity exists for all nationwide narrowband licenses, and Phase One's petition is moot on this point. --------------------------------------------------------------------------- 20. We find advertising of auctions desirable and in the public interest, even if, because of lack of mutual exclusivity, no auction takes place for some licenses. Among its other beneficial effects, advertising of auctions may be essential for making potential licensees, and in particular designated entities, aware of the opportunities available to them. In order to make service available as rapidly and efficiently as possible, we must ensure that those who value the license most highly, and will offer the services most valued by the public, have an opportunity to bid on them. Mutual exclusivity cannot be established until applications have been received, and at that point advertising will no longer be useful because the purpose of advertising is to inform potential licensees of the opportunity to file applications. Consequently, we retain our existing filing procedures and continue to permit our contractor to advertise auctions even before mutual exclusivity has been established.\41\ --------------------------------------------------------------------------- \41\In this regard we also note that since we find that advertising auctions is in the public interest, no conflict of interest exists between Tradewinds' interests and the Commission's. --------------------------------------------------------------------------- F. Application-Processing Rules 21. In the NPRM in this proceeding, the Commission stated: In order to avoid needless duplication, we propose that the following general filing and processing rules apply to all PCS: Sections 22.3-22.45 and 22.917(f), and 22.918-22.945, 47 CFR Secs. 22.3-22.45, 22.917(f), and 22.918-22.945. For those PCS applicants who file on Form 574, we believe that Secs. 90.113-90.159 of our rules, 47 CFR Secs. 90.113- 90.159, could be used to process those applications with appropriate modifications.\42\ --------------------------------------------------------------------------- \42\NPRM, 58 FR 53489 (Oct. 15, 1993) at 128. 22. Petition. AIDE asserts in its petition for reconsideration of the Second Report and Order that the Commission acted improperly in proposing substantive PCS application-processing rules in the NPRM because, it argues, such rules are outside the scope of this rulemaking, which is limited to implementation of the competitive bidding requirements of Sec. 309(j) of the Communications Act.\43\ AIDE argues that the Commission's proposal of application-processing rules is legally insufficient to constitute a valid notice of proposed rules, and that some of the rules cited have no immediate applicability to PCS service. AIDE asserts that in the Second Report and Order the Commission failed to respond to the merits of the arguments concerning filing and processing rules in AIDE's comments on the NPRM. AIDE concludes that the Commission needs to issue a supplemental Notice of Proposed Rulemaking to adopt license-processing rules for PCS. PacBell states, however, that the Administrative Procedure Act does not prohibit the Commission from issuing more than one order based on a notice and comment period.\44\ PacBell also states that there is an exception to the Administrative Procedure Act's notice and comment requirements ``when the agency for good cause finds (and incorporates the finding * * * in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.''\45\ --------------------------------------------------------------------------- \43\AIDE Petition at 20-21. \44\PacBell Opposition at 10. \45\Id. at 11, citing 5 U.S.C. Sec. 553(c). --------------------------------------------------------------------------- 23. Discussion. The Commission adopted few filing or processing rules in the Second Report and Order. Those rules that the Commission did adopt pertaining to the filing and processing of applications and certifications were clearly proposed in the NPRM.\46\ In the Second Memorandum Opinion and Order we stated that we would address AIDE's concerns in the reconsiderations of the service-specific Orders in which the application processing rules were adopted. In the Third Report and Order, we adopted the service-specific narrowband PCS application processing rules to which AIDE's petition refers and thus, we address the substance of AIDE's arguments below. --------------------------------------------------------------------------- \46\See Second Report and Order at 164-168, NPRM at 96-101. --------------------------------------------------------------------------- 24. The competitive bidding process is a means of assigning licenses, and rules and procedures for processing of license applications are an integral and necessary part of that process. By citing in the NPRM the specific Part 22 and Part 90 application processing rules that we would use as the basis for adopting PCS rules, we provided commenters with exceptionally clear notice and an opportunity to comment on the rules we contemplated adopting for narrowband PCS. The few changes that we made from the proposed rules were necessary to adapt them to auctioning narrowband PCS licenses. For example, we adopted certain technical requirements such as restrictions on station antenna structures.\47\ We also deleted any procedures that were related to grants by random selection.\48\ The resulting rules are clearly a logical outgrowth of the rules proposed in the NPRM, applied in the context of the use of competitive bidding to assign narrowband PCS licenses. Rules adopted as a logical outgrowth comply with all Administrative Procedure Act requirements.\49\ \47\47 CFR 24.416. \48\47 CFR 22.33. \49\Public Service Commission of the District of Columbia v. FCC, 906 F.2nd 713, 717 (D.C. Cir. 1990). --------------------------------------------------------------------------- III. Rules Prohibiting Settlements and Collusion 25. Petitions and Oppositions. The collusion rules adopted in the Third Report and Order prevent bidders for narrowband PCS licenses from entering into settlement agreements after applications are filed. AIDE asserts that narrowband bidders should be allowed to enter into settlement agreements, as encouraged by Sec. 24.429(b), and asserts that the Commission's decision to avoid post-filing settlements was impermissibly based on consideration of potential revenues. Quentin L. Breen (Breen) urges us to act on AIDE's petition to liberalize treatment of full market settlements. Breen states that the Budget Act does not relieve the Commission of its obligation in the public interest to continue to use means such as negotiation to avoid mutual exclusivity, nor does the Act oblige us to adopt anti-collusion regulations. Instead of permitting applicants to avoid the uncertainties and inefficiencies of the auction process, Breen states that the rules effectively mandate that parties will go to end of the auction without being able to consider settlement.\50\ PageNet, conversely, urges the Commission to prohibit any settlement negotiations during the competitive bidding process.\51\ According to PageNet, there is no way for mutually exclusive applicants to come to an agreement on settlement without exchanging the same kinds of information that would be exchanged for the formation of collusive strategies in auction bidding. Accordingly, PageNet asserts that settlement discussions should be prohibited prior to selection of a winner from among the Form 175 applicants.\52\ Furthermore, PageNet contends, that there is little likelihood of an all-market settlement in any given market, because if any one applicant declines to settle, the settlement is defeated.\53\ --------------------------------------------------------------------------- \50\Breen Opposition at 1-4. \51\PageNet Opposition at 20-26. \52\Id. at 22 & n.11. \53\Id. at 24. --------------------------------------------------------------------------- 26. Discussion. As stated in our reconsideration of the Second Report and Order, we have decided to retain the existing collusion rules, to the extent that they prevent settlements after applications are filed.\54\ These rules were designed to avoid formation of anticompetitive agreements among bidders, although we intend to continue reliance on the antitrust laws as our primary method of avoiding bidder collusion.\55\ As we indicated in the Second Report and Order, we believe that our rules prohibiting collusion will serve the objectives of the Budget Act by preventing applicants, especially the largest companies, from entering into agreements to use bidding strategies that divide the market to the disadvantage of other bidders.\56\ We also seek to ensure that entities will not file applications solely for the purpose of demanding payment from other bidders in exchange for settlement or withdrawal of their applications. --------------------------------------------------------------------------- \54\See Second Memorandum Opinion and Order at 54. \55\See Second Report and Order, 221-224. \56\Id. --------------------------------------------------------------------------- 27. Accordingly, to ensure that the bidding process is competitive and to encourage formation of a competitive post-auction market structure, we are retaining the collusion rules in the narrowband PCS context.\57\ Furthermore, to make clear that we recognize that these rules effectively prohibit post-filing settlements, we are amending our rules to eliminate Section 24.429(b). We believe that this is the most straightforward approach, given our strong concerns that collusion could have an extremely harmful impact upon competition. --------------------------------------------------------------------------- \57\See id., 223. --------------------------------------------------------------------------- 28. However, in order to provide bidders sufficient time and greater flexibility to attract capital, we make several modifications to our collusion rules adopted in the Third Report and Order. First, in the Second Memorandum Opinion and Order, we clarified the applicability of the collusion rules to cases where an applicant has a common ownership interest with another applicant.\58\ In that item we stated that, unless the second applicant is expressly identified as an entity with whom the first applicant has an agreement concerning bidding, we will prohibit these parties from communicating concerning their bidding strategies. This prohibition will hold even if the other bidder is identified on the applicant's short-form application as having a common ownership interest with the applicant. --------------------------------------------------------------------------- \58\Second Memorandum Opinion and Order at 55. --------------------------------------------------------------------------- 29. Furthermore, where common non-controlling ownership exists between two or more bidders, those bidders may win more licenses cumulatively than a single entity is entitled to hold. In such cases we will permit divestiture of non-controlling interests to bring the entities into compliance with the license aggregation limits provided such divestiture is completed within 90 days of grant of the license. Such post-auction divestiture will enable investors to finance more than one bidder without risking default penalties if both bidders win licenses which in combination exceed our aggregation limits. 30. In addition, we wish to modify our rules regarding amendments to short-form applications. Section 24.413 of the Commission's rules requires all applicants to list certain ownership information including all partners, subsidiaries, affiliates and all persons holding five percent or more of the stock, warrants, options or debt securities of the applicant. Section 24.422(b) currently prohibits amendments to the short-form application to make ownership changes or changes in the parties to bidding consortia after the application filing deadline has passed. As a result of our experience in the nationwide narrowband PCS auction we believe that it is necessary to allow applicants to amend their FCC Form 175 applications to make ownership changes after the filing deadline has passed, provided such changes do not result in a change in control of the applicant and provided that discussions leading up to such changes do not violate our anti-collusion rules. Such amendments must be made within two business days of any such change. Permitting such amendments will provide bidders with flexibility to seek additional capital after applications have been filed, while ensuring that the real party in interest does not change. Accordingly, we will modify rule 24.422(b) to permit applicants to amend their FCC Form 175 applications to reflect ownership changes that do not result in a change in control of the applicant. Such changes shall not be regarded as major amendments to an application, provided they do not result in a transfer of control of the applicant. 31. In addition, we are modifying our collusion rules, which currently prohibit bidders from communicating with one another after short form applications have been filed regarding the substance of their bids or bidding strategies and which also prohibit bidders from entering into consortia arrangements or joint bidding agreements of any kind after the deadline for short form applications has passed. In order to permit bidders to respond to higher than expected license prices by combining their resources during an auction, we will now permit bidders who have not filed Form 175 applications for any of the same licenses to engage in discussions and enter into bidding consortia or joint bidding arrangements during the course of an auction. We conclude that where bidders have not applied for any of the same licenses there is little risk of anticompetitive conduct with respect to a single license and therefore we believe that it is appropriate to relax our collusion rules to permit bidders in this context to have greater flexibility to increase their competitiveness in the auction by combining their resources, provided that no change of control of any applicant takes place. IV. Paging Response Channel Eligibility 32. Mercury submitted a request for clarification that non- incumbent paging licensees will be permitted to apply for only those narrowband paging response channel licenses that remain available after the initial response channel auctions. Eligibility requirements for these channels were adopted in GEN Docket No. 90-314, and therefore we will address this issue as part of the further reconsideration of the narrowband PCS service rules in that docket and in ET Docket No. 92- 100. V. Designated Entity Provisions 33. Background. In the 1993 Omnibus Budget Reconciliation Act, Congress amended the Communications Act to require the Commission to ensure that small businesses, rural telephone companies, and businesses owned by women and minority group members (designated entities) would have an opportunity to obtain licenses and participate in offering spectrum-based services.\59\ We considered numerous alternatives that might ensure opportunities for these designated entities, including installment payment plans, bidding credits, spectrum set-asides, tax certificates, royalty payments, innovator's preferences, and distress sales to designated entities.\60\ After considering the characteristics of the narrowband PCS service, we ultimately adopted installment payments for small businesses acquiring certain regional, MTA or BTA licenses.\61\ We also provided that a 25 percent bidding credit would be available to businesses owned by minorities and/or women on certain nationwide, regional, MTA and BTA licenses.\62\ Both installment payments and bidding credits were made available to small businesses owned by minorities and/or women. In addition, we provided that tax certificates would be made available to encourage investment in women- and minority-owned businesses.\63\ Our rules, however, did not permit rural telephone companies to obtain bidding credits or installment payments unless they also qualified as small businesses or businesses owned by minorities and/or women.\64\ --------------------------------------------------------------------------- \59\See Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, Title VI, Sec. 6002(a), 107 Stat. 312, 387-389, (1993) (Budget Act) (adopting 47 U.S.C. Secs. 309(j)(3)(B), 309(j)(4)(D)). \60\See Second Report and Order, 231-257. \61\See Third Report and Order, 68, 86-89. \62\Id., 72. \63\Id., 68, 70, 72-85. \64\As discussed further infra, these rules were based on the rationale that rural telephone companies do not face special barriers to entry into this service, nor are special accommodations necessary to ensure service in rural areas. See Third Report and Order, 71, 76. We concluded in the Third Report and Order, that, given the relatively modest construction costs for narrowband PCS, even new entrants may choose to provide service to rural areas, and special provisions are not necessary to ensure that rural telephone companies will have the opportunity to participate in provision of service to rural areas. Id., 71. We noted that women, minorities, and small businesses, in contrast, may face particular financing obstacles that require additional provisions to ensure that they have an opportunity to participate in providing narrowband PCS. Id., 72, 76. --------------------------------------------------------------------------- 34. Petitions. Three petitions assert that provisions made available for various designated entities, such as bidding credits, installment payments and tax certificates, should also be made available to all designated entity groups, and for all narrowband PCS licenses. The Association of Independent Designated Entities (AIDE) suggests that bidding credits, currently available for all businesses owned by minorities Pand/or women, should be granted to all small businesses and rural telephone companies, for all narrowband PCS licenses.\65\ AIDE reasons that even if bidding credits are not appropriate for small businesses applying for nationwide licenses (because small businesses can not afford to construct nationwide narrowband PCS systems), the Commission should nevertheless permit small businesses to obtain bidding credits for the smaller, geographically limited narrowband licenses.\66\ AIDE also states that the decision to limit installment payments to certain licenses was impermissibly based on maximizing auction revenues.\67\ --------------------------------------------------------------------------- \65\AIDE Petition at 14-18. \66\AIDE Petition at 16-17. \67\Id. at 18-19. --------------------------------------------------------------------------- 35. U.S. Intelco Networks, Inc. (USIN) and the Rural Cellular Association (RCA) assert that the failure to provide any narrowband provisions for rural telephone companies violates the Budget Act\68\ and ensures that narrowband PCS will be unavailable in rural areas.\69\ RCA states that rural telephone companies should receive bidding credits and tax certificates.\70\ RCA bases this assertion on the rationale that providing special bidding provisions for rural telephone companies would increase the likelihood that narrowband PCS licenses will be awarded to entities that will provide service to rural areas.\71\ RCA also notes that the Budget Act directs that the auction procedures must ensure that licenses for new technologies are awarded in a manner that promotes their rapid deployment ``for the benefit of the public, including those residing in rural areas.''\72\ --------------------------------------------------------------------------- \68\The Budget Act names rural telephone companies as one of the groups whose opportunity to participate in auctioned services must be ensured by our auction procedures. See Budget Act, Sec. 6002, 107 Stat. 388 (adopting 47 U.S.C. Sec. 309(j)(3)(B) and 309(j)(4)(D)). \69\See USIN Petition at 1-8, RCA Petition at P2-9. \70\RCA Petition at 9. \71\RCA Petition at 2. \72\Id. (quoting 47 U.S.C. Sec. 309(j)(3)(A)). --------------------------------------------------------------------------- 36. Oppositions. PageNet states that no additional measures should be taken with respect to participation of rural telephone companies or small businesses in narrowband PCS auctions.\73\ As to the availability of provisions for women and minority-owned businesses for only one license per channel grouping, PageNet notes that licenses with bidding credits comprise 37 percent of regional licenses and almost 45 percent of the available narrowband spectrum, thus earmarking a good deal of spectrum for designated entities.\74\ PageNet states that small businesses have always had ample opportunities in paging, and thus there is no reason to grant them special consideration.\75\ We also request comment on a proposal to redesignate the BTA licenses as regional licenses. --------------------------------------------------------------------------- \73\PageNet Opposition at 12-15. \74\Id. at 14. \75\Id. at 14-15. --------------------------------------------------------------------------- 37. Decision. We have decided, in response to petitions and to our experience with the nationwide narrowband auction, to expand the provisions for designated entities in future narrowband auctions. First, we will modify the definition of small business to expand eligibility. Second, for the upcoming regional narrowband auctions we will increase the bidding credit for women- and minority-owned businesses. 38. Congress mandated that the Commission ``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.''\76\ To achieve this goal, the statute requires the Commission to ``consider the use of tax certificates, bidding preferences, and other procedures.'' Thus, while providing that we may charge for licenses, Congress has ordered that the Commission design its auction procedures to ensure that designated entities have opportunities to obtain licenses and provide service. For that purpose, the law does not mandate the use of any particular procedure but it specifically approves the use of ``tax certificates, bidding preferences, and other procedures.'' The use of any such procedure is, in our view, mandated where necessary to achieve Congress's objective of ensuring that designated entities have the opportunity to participate in narrowband PCS. --------------------------------------------------------------------------- \76\47 U.S.C. Sec. 309(j)(4)(D). --------------------------------------------------------------------------- 39. In addition to this mandate, the statute sets forth various congressional objectives. For example, it provides that in establishing eligibility criteria and bidding methodologies the Commission shall ``promot[e] economic opportunity and competition and ensur[e] that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women.''\77\ Further, Section 309(j)(4)(A) provides that to promote the statute's objectives the Commission shall ``consider alternative payment schedules and methods of calculation, including lump sums or guaranteed installment payments, with or without royalty payments, or other schedules or methods * * * and combinations of such schedules and methods.'' --------------------------------------------------------------------------- \77\47 U.S.C. Sec. 309(j)(3)(B); see also id. Sec. 309(j)(4)(C) (requiring the Commission when prescribing area designations and bandwidth assignments, to promote ``economic opportunity for a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women). As noted in the Second Report and Order, the statute also requires the Commission to promote the purposes specified in Section 1 of the Communications Act, which include, among other things, ``to make available, so far as possible, to all the people of the United States a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges.'' 47 U.S.C. Sec. 151; Second Report and Order at n.3. --------------------------------------------------------------------------- 40. To satisfy these statutory mandates and objectives, we established in the Second Report and Order eligibility criteria and general rules to govern the special measures for small businesses, and businesses owned by members of minority groups and women. In the Third Report and Order, we employed several measures, including installment payments, bidding credits and tax certificates, to enhance opportunities for designated entities bidding on certain narrowband PCS licenses. We stated that we believed that narrowband PCS would provide significant opportunities for all designated entities to provide a wide variety of new services including advanced paging and messaging services. In adopting the particular measures for designated entities, however, we assumed that narrowband PCS would involve relatively low capital entry requirements, and would therefore be well-suited to small entities, which lack access to large amounts of capital.\78\ Accordingly, we found that the measures we selected for narrowband PCS auctions were appropriately tailored to the unique characteristics of narrowband PCS and would therefore ``create meaningful incentives for small businesses and businesses owned by minorities and/or women to both bid successfully for available licenses and provide innovative and expeditious service to the public.\79\ In this regard we indicated that installment payments would provide a significant means for small businesses to overcome their main barrier to entry: lack of access of financing. And, a 25 percent bidding credit for minority and women- owned businesses together with a tax certificate program would address the additional obstacles faced by those designated entities. We noted, however, that we would continue to assess the effectiveness of the measures adopted for narrowband PCS, and would apply any knowledge gained to subsequent auctions. --------------------------------------------------------------------------- \78\Third Report and Order at 69. \79\Id. at 70. --------------------------------------------------------------------------- 41. Our goal in the narrowband personal communications service is to meet fully the statutory mandate of Section 309(j)(4)(D), as well as the objectives of promoting economic opportunity and competition, of avoiding excessive concentration of licenses, and of ensuring access to new and innovative technologies by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women. As explained more fully below, we believe that it is necessary in some respects to do more to ensure that small businesses and businesses owned by members of minority groups and women have a meaningful opportunity to participate in the provision of narrowband PCS. As a result of our experience in the nationwide narrowband PCS auction, we are concerned that a 25 percent bidding credit and installment payments may not be sufficient to ensure the opportunity of these businesses to compete against the larger, deep pocketed incumbent firms. Therefore, we have decided to expand the provisions for designated entities as described below. A. Definition of Small Business 42. In the Third Report and Order we adopted a definition for small businesses based on the standard definition used by the Small Business Administration (SBA). This definition permits an applicant to qualify for installment payments based on a net worth not in excess of $6 million with average net income after Federal income taxes for the two preceding years not in excess of $2 million. 13 CFR 121.802(a)(2).\80\ In the Second Memorandum Opinion and Order, we removed our generic ``small business'' definition, which was based on the original SBA size standard and indicated that we would establish a definition for ``small businesses'' on a service-specific basis. --------------------------------------------------------------------------- \80\The SBA has recently changed its net worth/net income standard as it applies to its Small Business Investment Company (SBIC) Program. See 59 FR 16953, 16956 (April 8, 1994). The new standard for determining eligibility for small business concerns applying for financial and/or management assistance under the SBIC program was increased to $18 million net worth and $6 million after- tax net income. 13 CFR 121.802(a)(3)(i). The change in this size standard was attributable to an adjustment for inflation and changes in the SBIC program ``designed to strengthen and expand the capabilities of SBICs to finance small businesses so that they can increase their contribution to economic growth and job creation.'' 59 FR at 16955. --------------------------------------------------------------------------- 43. Many commenters, including the Chief Counsel for Advocacy of the SBA, argue that the SBA net worth/net revenue definition is too restrictive and will exclude businesses of sufficient size to survive, much less succeed, in the competitive PCS marketplace. The SBA's Chief Counsel for Advocacy and the Suite 12 Group advocate adoption of a gross revenue test, arguing that a net worth test could be misleading as some very large companies have low net worth. The SBA's Chief Counsel for Advocacy recommends that the revenue standard be raised to include firms that (together with affiliates) have less than $40 million in gross revenues. Similarly, Suite 12 suggests a $75 million in annual sales threshold. As another option, the SBA's Chief Counsel for Advocacy suggests that the Commission consider a higher revenue ceiling or adopt different size standards for different telecommunications markets.\81\ --------------------------------------------------------------------------- \81\Some parties recommend using the SBA's alternative 1500 employee standard. See, e.g., comments of SBA Associate Administrator for Procurement Assistance at 2, CFW Communications at 2, and Iowa Network at 17. A number of other commenters, including the SBA's Chief Counsel for Advocacy, argue, however, that adoption of this alternative SBA definition would open up a huge loophole in the designated entity eligibility criteria. Specifically, they contend that telecommunications is a capital, rather than labor, intensive industry, and that a entity with 1,500 employees is likely to be extremely well capitalized and have no need for the special treatment mandated by Congress in the Budget Act. See, e.g., comments of SBA Chief Counsel for Advocacy at 8, LuxCel Group, Inc. at 4, Suite 12 Group at 10-11. --------------------------------------------------------------------------- 44. We now realize that the cost of acquiring a narrowband PCS license will be significant and bidders may be required to expend millions of dollars to acquire a license and construct a system in PCS markets. Thus, we believe that our current narrowband PCS small business definition is overly restrictive because it would exclude most businesses possessing the financial resources to compete successfully in the provision of narrowband PCS services. Accordingly, we modify our small business definition for narrowband PCS auctions to ensure the participation of small businesses with the financial resources to compete effectively in an auction and in the provision of narrowband PCS services. 45. There is substantial support in the record for a $40 million gross revenue standard. For example, the SBA recommends that for PCS, a small business be defined as one whose average annual gross revenues for its past three years do not exceed $40 million.\82\ It states that this definition isolates those companies that have significantly greater difficulty in obtaining capital than larger enterprises. At the same time, the SBA contends that a company with $40 million in revenue is sufficiently large that it could survive in a competitive wireless communications market.\83\ Similarly, the SBA Chief Counsel for Advocacy asserts that a $40 million threshold will allow participation by firms ``of sufficient size to meet demands in almost all small markets and some medium-size markets without significant outside financial assistance.''\84\ --------------------------------------------------------------------------- \82\Ex parte filing of U.S. Small Business Administration, June 24, 1994. \83\Id. \84\Comments of SBA Office of Advocacy at 10. Cf. comments of Iowa Network and Telephone Electronics Corporation (advocating a $40 million annual revenue criterion for telephone companies) and replay comments of North American Interactive Partners and Kingwood Associates (advocating $40 million gross-revenue criterion for applicants for the fifty most-populous BTAs, based on estimated average build-out cost). --------------------------------------------------------------------------- 46. For purposes of narrowband PCS, we shall therefore define a small business as any firm, together with affiliates and certain large investors, with average gross revenues for the three preceding years of less than $40 million.\85\ In addition, an applicant will not qualify as a small business if any one attributable investor in, or affiliate of, the entity has $40 million or more in personal net worth.\86\ To ensure that only bona fide small businesses in need of government financing are eligible, we will consider the gross revenues of the applicant, its affiliates, as well as those of ``attributable'' investors on a cumulative basis. The text that follows discusses what interests are attributable for these purposes. In addition, it sets forth exceptions to these attribution rules for minority and women- owned applicants. --------------------------------------------------------------------------- \85\The establishment of small business size standards is generally governed by Section 3 of the Small Business Act of 1953, as amended, 15 U.S.C. Sec. 642(a). Recent amendments to that statute provide that small business size standards developed by Federal agencies must be based on the average annual gross revenues of such business over a period of not less than three years. See Pub. L. No. 102-366, Title II, Sec. 222(a), 106 Stat. 999 (1992); 15 U.S.C. Sec. 632(a)(2)(B)(ii). \86\Unlike our proposed eligibility criteria to bid in the entrepreneurs' blocks, described below, the small business definition does not include a total assets standard. We believe that the $40 million gross revenue cap for small businesses should be sufficient to ensure that only bona fide small businesses are able to take advantage of the measures intended for them. --------------------------------------------------------------------------- 47. Qualified ``Small Businesses''. As a general rule, the gross revenues of all investors in, and affiliates of, an applicant are counted on a cumulative, fully-diluted basis for purposes of determining whether the $40 million gross revenue threshold has been exceeded, and on an individual basis regarding the $40 million personal net worth standard.\87\ There are two exceptions to this rule, however. First, applicants that meet the definition of a small business may, as discussed below, form consortia of small businesses that, on a aggregate basis, exceed the gross revenue cap. Second, the gross revenues, personal net worth, and affiliations of any investor in the applicant are not considered so long as the investor holds 25 percent or less of the applicant's passive equity. For corporations, we shall use the term passive equity investors to mean investors who hold only non-voting stock or voting stock that includes no more than 15 percent of the voting interests. Where different classes of stock are held, however, the total amount of equity must still be no more than 25 percent to meet this requirement. For partnerships, the term means limited partnership interests that do not have the power to exercise control of the entity.\88\ The passive investor exception will be available, however, only so long as the applicant remains under the control of one or more entities or individuals (defined as the ``control group'') and the control group holds at least 25 percent of the applicant's equity and, in the case of corporate applicants, at least 50.1 percent of the voting stock.\89\ In the case of partnership applicants, the control group must hold all the general partnership interests. Winning bidders are required to identify on their long-form applications the identity of the members of this control group and the means of ensuring control (such as a voting trust agreement). The gross revenues of each member of the control group and each member's affiliates will be counted toward the $40 million gross revenues threshold and applicants shall certify that each control group member meets the individual $40 million personal net worth standard, regardless of the size of the member's total interest in the applicant. --------------------------------------------------------------------------- \87\By ``fully-diluted,'' we mean that agreements such as stock options, warrants and convertible debentures will generally be considered to have a present effect and will be treated as if the rights thereunder already have been fully exercised. \88\Applicants must be prepared to demonstrate that the limited partners do not have influence over the affairs of the applicant that is inconsistent with their roles as passive investors. For purposes of our rules, we presume that any general partner has the power to control a partnership. Therefore, each general partner in a partnership will be considered part of the partnership's control group. \89\So long as the applicant remains under de jure and de facto control of the control group, we shall not bar passive investors from entering into management agreements with applicants. --------------------------------------------------------------------------- 48. The attribution levels we have selected here are intended to balance the competing considerations that apply in this particular context and may differ from those we have used in other circumstances. As a general matter, the 25 percent limitation on equity investment interests will serve as a safeguard that the very large entities who are excluded from bidding in these blocks do not, through their investments in qualified firms, circumvent the gross revenue cap. At the same time, it will afford qualified bidders a reasonable measure of flexibility in obtaining needed financing from other entities, while ensuring that such entities do not acquire controlling interests in the eligible bidders. Similarly, the 15 percent threshold for attributing revenues of investors with voting stock in corporate applicants is designed to keep ineligible parties from exerting undue influence over eligible firms. For all of these reasons, we also will attribute the gross revenues of entities, or the personal net worth of individuals, that otherwise constitute ``affiliates'' of the applicant.\90\ --------------------------------------------------------------------------- \90\The definition of an ``affiliate'' is described in the Further Notice 55. --------------------------------------------------------------------------- 49. Qualified Woman and Minority-Owned Small Businesses. The record demonstrates that women and minorities have especially acute problems in obtaining financing, due in part to discriminatory lending practices by private financial institutions. To address these special problems and to afford women and minority-owned small businesses more flexibility in attracting financing, it is necessary to provide these entities with an alternative, somewhat more relaxed option regarding the attribution of revenues of passive investors. Under the alternative standard, we will not attribute to the applicant the gross revenues or net worth of any single investor in a minority or woman-owned small business applicant unless it holds more than 49.9 percent of the passive equity (which is defined to include as much as 15 percent of a corporation's voting stock). To guard against abuses, however, the control group of applicants choosing this option would have to own at least 50.1 percent of the applicant's equity, as well as retain control and hold at least 50.1 percent of the voting stock.\91\ Winning bidders must identify on their long-form applications a control group (this time consisting entirely of minorities and/or women or entities 100 percent owned and controlled by minorities and/or women) and the gross revenues and net worth of each member of the control group and each member's affiliates will be counted toward the $40 million gross revenue threshold or the individual $40 million personal net worth limitation, regardless of the size of the member's total interest in the applicant. --------------------------------------------------------------------------- \91\As noted previously, the control group of a partnership applicant must hold all of the general partnership interests. --------------------------------------------------------------------------- 50. Relaxing the attribution standard somewhat in determining the eligibility of woman and minority-owned companies to bid as small businesses directly addresses what most commenters have stated to be the biggest obstacle to entry for these designated entities: obtaining adequate financing. By this measure, women and minorities who are eligible to bid as small businesses (i.e., who otherwise meet the $40 million gross revenue standard) will be required to maintain control of their companies and, at the same time, will have flexibility to attract significant infusions of capital from a single investor. The requirement that the minority and women principals hold 50.1 percent of the company's equity mitigates substantially the danger that a well- capitalized investor with a substantial ownership stake will be able to assume de facto control of the applicant. 51. Of course, women and minority-owned firms, like any other small business applicant, may sell a larger portion of their companies' equity, provided that they also abide by the general eligibility requirements for small businesses. Specifically, the gross revenues and net worth of all investors holding more than 25 percent of the company's passive equity (as defined to include 15 percent or more of the voting stock) will be attributed toward the $40 million cap and the $40 million personal net worth standard. In this event, the control group will be required to hold at least 25 percent of the company's equity and 50.1 percent of its voting stock. 52. De Facto Control Issues. We shall codify in our rules a provision explaining more explicitly the term ``control,'' so that applicants will have clear guidance concerning the requirement that a control group maintains de facto as well as de jure control of the firms that are eligible for special treatment under the rules for narrowband PCS. For this purpose, we shall borrow from certain SBA rules that are used to determine when a firm should be deemed an affiliate of a small business. These SBA rules, which are codified in 13 CFR 121.401, provide several specific examples of instances in which an entity might have control of a firm even though the entity has less than 50 percent of the voting stock of a concern, and thus provide a useful model for our rules. Through reference to circumstances such as those described in the SBA rules, our rules will expressly alert designated entities that control of the applicant through ownership of 50.1 percent of the firm's voting interests may be insufficient to ensure de facto control of the applicant if, for example, the voting stock of the eligible control group is widely dispersed. In those and other circumstances, ownership of 50.1 percent of the voting stock may be insufficient to assure control of the applicant. Of course, apart from these structural issues relative to control, eligible entities must not, during the license term, abandon control of their licenses through any other mechanism. As we stated in the Second Report and Order, designated entities must be prepared to demonstrate that they are in control of the enterprise.\92\ --------------------------------------------------------------------------- \92\Second Report and Order at 278, citing Intermountain Microwave, 24 Rad. Reg. 983, 984 (1963). --------------------------------------------------------------------------- 53. In the Second Memorandum Opinion and Order, we concluded that designated entities might be permitted to receive benefits based on their participation in consortium on a service specific basis, but believed generally that such a consortium should not be entitled to qualify for measures designed specifically for designated entities. As a general matter, we shall continue to adhere to that principle. We think, however, that in the narrowband PCS service, allowing small businesses to pool their resources in this manner is necessary to help them overcome capital formation problems and thereby ensure their opportunity to participate in auctions and to become strong narrowband PCS competitors. Because of the exceptionally large capital requirements associated with acquiring a license in this service, we agree with the SBA Chief Counsel for Advocacy that, so long as individual members of the consortium satisfy the definition of a small business, the congressional objective of ensuring opportunities for small businesses will be fully met. Individual small entities that join to form consortia, as distinguished from a single entity with gross revenues in excess of $40 million, still are likely to encounter capital access problems and, thus, should qualify for measures aimed at small businesses. We do not believe however, that this congressional goal will be satisfied if special measures are allowed for consortia that are ``predominantly'' or ``significantly'' owned and/or controlled by small businesses. This would have the effect of eviscerating our small business definition criteria and would not further the ability of bona fide small businesses to participate in PCS services. 54. Financial Benefits. To ensure that the control group has a substantial financial stake in the venture, we shall adopt certain additional requirements. As noted previously, we shall require that at least 50.1 percent of the voting stock and at least 25 percent (or 50.1 percent for the alternative option for minority- and women-owned businesses) of the aggregate of all outstanding shares of stock to be unconditionally owned by the control group members. In addition, 50.1 percent of the annual distribution of dividends paid on the voting stock of a corporate applicant concern must be paid to these members. Also, in the event stock is sold, the control group members must be entitled to receive 100 percent of the value of each share of stock in his or her possession. Similarly, in the event of dissolution or liquidation of the corporation, the control group members must be entitled to receive at least 25 percent (or 50.1 percent, as the case may be) of the retained earnings of the concern and 100 percent of the value of each share of the stock in his or her possession, subject, of course, to any applicable laws requiring that debt be paid before distribution of equity. 55. Partnerships and other non-corporate entities will be subject to similar requirements. Indicia of ownership that we will consider in non-corporate cases include (but are not limited to) (a) the right to share in the profits and losses, and receive assets or liabilities upon liquidation, of the enterprise pro rata in relationship to the designated entity's ownership percentage and (b) the absence of opportunities to dilute the interest of the designated entity (through capital calls or otherwise) in the venture. As with corporations, our concern is ensuring that the economic opportunities and benefits provided through these rules flow to designated entities, as Congress directed. 56. Abuses. As stated above, we intend by these attribution rules to ensure that bidders and recipients of these licenses are bona fide in their eligibility, and we intend to conduct random audits both before the auctions and during the 10-year initial license period to ensure that our rules are complied with in letter and spirit. If we find that large firms or individuals exceeding our personal net worth caps are able to assume control of licensees that have received small business provisions or otherwise circumvent our rules, we will not hesitate to force divestiture of such improper interests or, in appropriate cases, issue forfeitures or revoke licenses. In this regard, we reiterate that it is our intent, and the intent of Congress, that women, minorities and small businesses be given an opportunity to participate in narrowband PCS services, not merely as fronts for other entities, but as active entrepreneurs. 57. In addition, in view of our new small business definition and the associated maximum investor limits, we are modifying our unjust enrichment rules to prevent any post-auction circumvention of our financial threshold, and to ensure that the ultimate licensees are bona fide designated entities. Accordingly, firms that received installment payments based on their small business status will be subject to repayment if, for example, another entity subsequently purchases an ``attributable'' interest or becomes a member of the control group and, as a result, the gross revenues of the firm would exceed the $40 million gross revenues cap, or the personal net worth of an individual investor exceeds the $40 million personal net worth threshold. B. Bidding Credits in Regional Narrowband Auctions 58. In the Third Report and Order we established bidding credits of 25 percent for women- and minority-owned businesses on two of the six regional narrowband licenses.\93\ In order to increase the opportunities for women and minorities to participate in the provision of narrowband service, we have decided to increase the bidding credit on the same two licenses for women- and minority-owned businesses in the upcoming regional narrowband auction from 25 percent to 40 percent. Our experience with the nationwide narrowband PCS auctions, where very high license values coupled with only a 25 percent bidding credit may have contributed to the failure of women- and minority-owned businesses to win licenses, suggests that a credit of this magnitude may be necessary to overcome the disadvantages of these groups in bidding for licenses representing large populations and large geographic areas.\94\ In an ex parte filing, Essence Television Productions, Inc. one of the initial participants in the nationwide narrowband PCS auction, argues that designated entities should receive bidding credits of up to 40 percent when competing in auctions against non-designated entities.\95\ The increased bidding credit combined with installment payments for firms that meet our revised small business definition should enable minority- and women-owned businesses to attract the capital necessary to compete. In addition, we seek comment on whether additional measures such as an entrepreneur's block should be employed in future auctions (see infra.). --------------------------------------------------------------------------- \93\Third Report and Order at 68. \94\We have already adopted installment payments for small businesses on regional, MTA and BTA licenses. See Sec. 24.309(A). \95\Ex parte filing of Essence Television Productions, Inc., August 2, 1994. --------------------------------------------------------------------------- C. Rural Telephone Companies 59. In this docket, we established general rules and identified several measures, including installment payments, spectrum set-asides, bidding credits and tax certificates, that we would choose among in establishing rules for auctionable spectrum-based services, on a service-specific basis. In adopting service-specific rules, we have carefully selected provisions to meet the particular needs of each designated entity group, so as to ``ensure,'' pursuant to the statute, that each group has the opportunity to participate in providing spectrum-based services. 60. As we indicated above, it is occasionally necessary to do more to ensure that businesses owned by members of minority groups and women have a meaningful opportunity to participate in provision of personal communications services than is necessary to ensure that other designated entity groups have similar opportunities.\96\ The major problem facing minorities and women who seek to offer PCS is lack of access to capital.\97\ Small businesses also encounter serious funding problems.\98\ In contrast, rural telephone companies that are not small businesses (and are not owned by minorities or women) do not face the same difficulties in obtaining capital. Accordingly, we do not believe that any additional provisions for rural telephone companies are necessary or appropriate in the context of narrowband PCS. Moreover, as we stated in the Second Report and Order, limiting installment payments to smaller businesses, including those owned by minorities and women, best comports with the intent of Congress by avoiding auction procedures that tend to favor incumbents with established revenue streams over new companies and entrepreneurs.\99\ Therefore, rural telephone companies that are not eligible as small businesses will not receive installment payment assistance. --------------------------------------------------------------------------- \96\Fifth Report and Order at 96, in PP Docket No. 93-253, FCC 94-178, adopted June 29, 1994, released July 15, 1994, 59 FR 37566 (Jul 29, 1994), (Fifth Report and Order). \97\Id.; see also, e.g., Report of the FCC Small Business Advisory Committee to the FCC Regarding Gen. Docket No. 90-314 (Sept. 15, 1993), reprinted at 8 FCC Rcd 7820, 8727 (1993) (SBAC Report); Small Business Credit and Business Opportunity Enhancement Act of 1992, Sections 112(4), 331(a)(4), Pub. Law 102-366, Sept. 4, 1992 (Small Business Credit Act) (finding that minority- and woman- owned businesses encounter particular problems in obtaining capital, and minorities face ``extraordinary'' obstacles in this regard). \98\See Fifth Report and Order 93-108. \99\See Second Report and Order, 234 & n.179 (citing H.R. Rep. No. 103-111 at 255), 237. We note, however, that many more rural telephone companies are considered small businesses under our revised small business definition than was the case previously. --------------------------------------------------------------------------- 61. Finally, we believe that special provisions for rural telephone companies that are not smaller entities are not necessary in this context to encourage service to rural areas.\100\ Especially in regions where the lack of wireline service makes wireless alternatives desirable, paging service is provided to rural areas by paging companies as well as telephone companies. We therefore believe that many telecommunications companies, and not only rural telephone companies, will pursue ordinary profit incentives to provide narrowband PCS service to outlying areas. Accordingly, we believe that installment payment plans are not necessary to encourage larger rural telephone companies to provide this relatively low-cost service in rural areas. --------------------------------------------------------------------------- \100\Congress did not instruct us to provide for every designated entity group in every service, and we believe that provisions for this particular group are not necessary for narrowband PCS. --------------------------------------------------------------------------- D. Other Designated Entity Decisions 62. We make two additional decisions concerning designated entities on our own motion. First, we clarify that, for a partnership to qualify for designated entity status, all general partners in the applicant and its ``control group'' must be eligible entities, consistent with our revised generic eligibility criteria in the Second Memorandum Opinion and Order in this proceeding. For the purposes of our rules, we presume that all general partners in a partnership have the power to bind the partnership, and therefore have de facto control.\101\ Therefore, to ensure that designated entity provisions are made available only to legitimate eligible entities if the partnership is to receive designated entity benefits, all general partners will be required to be designated entities if the partnership is to obtain designated entity status. --------------------------------------------------------------------------- \101\See, e.g., Fifth Report and Order, 158 & n. 134 (making such a presumption and therefore treating each general partner in a partnership applying for broadband PCS licenses as part of the partnership's control group). --------------------------------------------------------------------------- 63. In addition, we are adopting for narrowband PCS the requirement that all entities claiming a designated entity benefit must substantiate their eligibility for such benefits. In a related action reconsidering the Second Report and Order in this proceeding, we are requiring applicants that seek designated entity benefits to document their eligibility for such benefits.\102\ For narrowband PCS we therefore require designated entity applicants to describe on their long-form applications how they meet the eligibility criteria for designated entity benefits. Applicants must list and summarize on their long-form application all agreements that affect designated entity status, such as all 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. In addition, we will require that such information be maintained at the licensee's facilities, or by its designated agent, for the term of the license, and that the information be made available to Commission staff upon request. We believe that this provision will prove useful when the Commission conducts its random audits of designated entities providing narrowband PCS to ensure their continuing designated entity status. --------------------------------------------------------------------------- \102\See Second Memorandum Opinion and Order at 134; Cook Inlet Petition for reconsideration of Second Report and Order at 16. --------------------------------------------------------------------------- VI. Procedural Matters And Ordering Clause A. Regulatory Flexibility Analysis 64. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. Sec. 604, the Commission's final analysis for the Memorandum Opinion and Order is as follows: Memorandum Opinion and Order--Final Analysis 65. Need for, and Purpose of, this Action. As a result of new statutory authority, the Commission may utilize competitive bidding mechanisms in the granting of certain initial licenses. The Commission published an Initial Regulatory Flexibility Analysis, see generally 5 U.S.C. Sec. 603, within the Notice of Proposed Rule Making in this proceeding, and published Final Regulatory Flexibility Analyses within the Second Report and Order (at 299-302) and the Third Report and Order (at 91-94). As noted in these previous final analyses, this proceeding will establish a system of competitive bidding for choosing among certain applications for initial licenses, and will carry out statutory mandates that certain designated entities, including small entities, be afforded an opportunity to participate in the competitive bidding process and in the provision of spectrum-based services. 66. Summary of the Issues Raised by the Public Comments. In regard to the specific narrowband PCS issues addressed by this Third Memorandum Opinion and Order, no comments were submitted in response to our Initial Regulatory Flexibility Analysis. 67. Significant Alternatives Considered. Although, as described in (B) above, no comments were received pertaining to narrowband PCS, the Second Report and Order and Third Report and Order addressed at length the general policy considerations raised as a result of the Commission's new auction authority. B. Ordering Clause 68. Accordingly, It Is Ordered, That the petitions for reconsideration Are Granted to the extent described above and Denied in all other respects. 69. It Is Further Ordered, that Part 24 of the Commission's Rules Is Amended as set forth in the attached Appendix. It Is Ordered, that the rule changes made herein Will Become Effective 30 days after their publication in the Federal Register. This action is taken pursuant to Sections 4(i), 303(r) and 309(j) of the Communications Act of 1934, as amended, 47 U.S.C. Secs. 154(i), 303(r) and 309(j). List of Subjects in 47 CFR Part 24 Administrative practice and procedure, Reporting and recordkeeping requirements, Telecommunications. Federal Communications Commission. LaVera F. Marshall, Acting Secretary. Rules Part 24 of chapter I of title 47 of the Code of Federal Regulations is amended as follows: PART 24--PERSONAL COMMUNICATIONS SERVICES 1. The authority citation for Part 24 continues to read as follows: Authority: Secs. 4, 301, 302, 303, 309 and 332, 48 Stat. 1066, 1082, as amended; 47 U.S.C. Secs. 154, 301, 302, 303, 309 and 332, unless otherwise noted. 2. Section 24.129 is revised to read as follows: Sec. 24.129 Frequencies. The following frequencies are available for narrowband PCS. All licenses on channels indicated with an (*) will be eligible for bidding credits of 25 percent, and all licenses indicated with an (**) will be eligible for bidding credits of 40 percent, as set forth in Sec. 24.309(b) if competitive bidding is used to award such licenses. (a) Eleven frequencies are available for assignment on a nationwide basis as follows: (1) Five 50 kHz channels paired with 50 kHz channels: Channel 1: 940.00-940.05 and 901.00-901.05 MHz; Channel 2: 940.05-940.10 and 901.05-901.10 MHz; Channel 3: 940.10-940.15 and 901.10-901.15 MHz; Channel 4: 940.15-940.20 and 901.15-901.20 MHz; and, Channel 5: 940.20-940.25 and 901.20-901.25 MHz:* (2) Three 50 kHz channels paired with 12.5 kHz channels: Channel 6: 930.40-930.45 and 901.7500-901.7625 MHz; Channel 7: 930.45-930.50 and 901.7625-901.7750 MHz; and, Channel 8: 930.50-930.55 and 901.7750-901.7875 MHz;* (3) Three 50 kHz unpaired channels: Channel 9: 940.75-940.80 MHz; Channel 10: 940.80-940.85 MHz; and, Channel 11: 940.85-940.90 MHz.* (b) Six frequencies are available for assignment on a regional basis as follows: (1) Two 50 kHz channels paired with 50 kHz channels: Channel 12: 940.25-940.30 and 901.25-901.30 MHz; and, Channel 13: 940.30-940.35 and 901.30-901.35 MHz.** (2) Four 50 kHz channels paired with 12.5 kHz channels: Channel 14: 930.55-930.60 and 901.7875-901.8000 MHz; Channel 15: 930.60-930.65 and 901.8000-901.8125 MHz; Channel 16: 930.65-930.70 and 901.8125-901.8250 MHz; and, Channel 17: 930.70-930.75 and 901.8250-901.8375 MHz.** (c) Seven frequencies are available for assignment on a MTA basis as follows: (1) Two 50 kHz channels paired with 50 kHz channels: Channel 18: 940.35-940.40 and 901.35-901.40 MHz; and, Channel 19: 940.40-940.45 and 901.40-901.45 MHz.* (2) Three 50 kHz channels paired with 12.5 kHz channels: Channel 20: 930.75-930.80 and 901.8375-901.8500 MHz; Channel 21: 930.80-930.85 and 901.8500-901.8625 MHz; and, Channel 22: 930.85-930.90 and 901.8625-901.8750 MHz.* (3) Two 50 kHz unpaired channels: Channel 23: 940.90-940.95 MHz; and, Channel 24: 940.95-941.00 MHz.* (d) Two 50 kHz channels paired with 12.5 kHz channels are available for assignment on a BTA basis: Channel 25: 930.90-930.95 and 901.8750-901.8875 MHz; and, Channel 26: 930.95-931.00 and 901.8875-901.9000 MHz.* Note 1: Operations in markets or portions of markets which border other countries, such as Canada and Mexico, will be subject to on-going coordination arrangements with neighboring countries. Sec. 24.130 Paging response channels. 3. Section 24.130 is amended by revising paragraphs (b) and (c) to read as follows: * * * * * (b) The following four 12.5 kHz unpaired channels are available for assignment on a MTA basis: A: 901.9000-901.9125 MHz; B: 901.9125-901.9250 MHz; C: 901.9250-901.9375 MHz; and D: 901.9375-901.9500 MHz. (c) The following four 12.5 kHz unpaired channels are available for assignment on a BTA basis: E: 901.9500-901.9625 MHz; F: 901.9625-901.9750 MHz; G: 901.9750-901.9875 MHz; and H: 901.9875-902.0000 MHz. 4. Section 24.303 is revised to read as follows: Sec. 24.303 Competitive bidding mechanisms. (a) Sequencing. The Commission will establish and may vary the sequence in which narrowband PCS licenses will be auctioned. (b) Grouping. In the event the Commission uses either a simultaneous multiple round competitive bidding design or combinatorial bidding, the Commission will determine which licenses will be auctioned simultaneously or in combination. (c) Reservation Price. The Commission may establish a reservation price, either disclosed or undisclosed, below which a license subject to auction will not be awarded. (d) Minimum Bid Increments. The Commission may, by announcement before or during an auction, require minimum bid increments in dollar or percentage terms. The Commission may also establish by Public Notice a suggested opening bid or a minimum opening bid on each license. (e) Stopping Rules. the Commission may establish stopping rules before or during multiple round auctions in order to terminate an auction within a reasonable time. (f) Activity Rules. The Commission may establish activity rules which require a minimum amount of bidding activity. In the event that the Commission establishes an activity rule in connection with a simultaneous multiple round auction, each bidder will be entitled to request and will be automatically granted one activity rule waiver during each stage of an auction, or one automatic waiver during a specified number of bidding rounds. The Commission may change by Public Notice the number and frequency of such automatic activity rule waivers for a specific auction. (g) Bidder Identification During Auctions. The Commission may choose, on an auction-by-auction basis, to release the identity of the bidders associated with bidder identification numbers. The Commission will announce by Public Notice before each auction whether bidder identities will be revealed. 5. Section 24.308 is revised to read as follows: Sec. 24.308 License Grant, Denial, Default, and Disqualification. (a) Unless eligible for installment payments and/or a bidding credit, each winning bidder is required to pay the balance of its winning bid in a lump sum payment within five (5) business days following the award of the license. Grant of the license will be conditioned upon full and timely payment of the winning bid amount. (b) A bidder who withdraws its bid, defaults on a payment or is disqualified will be subject to the penalties specified in Sec. 1.2109 of this Chapter. 6. Section 24.309 is revised to read as follows: Sec. 24.309 Designated Entities. (a) Designated entities entitled to preferences in the narrowband PCS service are small businesses and businesses owned by members of minority groups and/or women as defined in Secs. 24.320(b) and 24.320(c). (b) Designated entities will be eligible for certain special narrowband PCS provisions as follows: (1) Installment payments. Small businesses, including small businesses owned by members of minority groups and women, will be eligible to pay the full amount of their winning bid on any regional, MTA or BTA license in installments over the term of the license pursuant to the terms set forth in Section 1.2110(d) of this Chapter. (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; (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 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 (**). (3) Tax Certificates. Any non-controlling initial investor in a business owned by members of minority groups and/or women and who provides ``start-up'' financing, which allows such business to acquire a narrowband PCS license(s), and any non-controlling investor who purchases an interest in a narrowband PCS license held by a business owned by members of minority groups and/or women with the first year after license issuance, may, upon the sale of such investment or interest, request from the Commission a tax certificate. Any narrowband PCS licensee who assigns or transfers control of its license to a business owned by members of minority groups and/or women may request that the Commission issue the licensee a tax certificate. (c) Short-Form Application Certification; Long-Form Application Disclosure. (1) All applicants for licenses under the designated entity provisions set forth in this section shall certify on their short-form applications (Form 175) that they are eligible for those preferences pursuant to this section. (2) In addition to the requirements in subpart I, all designated entity applicants that are winning bidders shall, in an exhibit to their long-form applications-- (i) Identify each member of the applicant's control group, regardless of the size of the member's total interest in the applicant, and each member's minority group or gender classification, if applicable; (ii) Disclose the gross revenues of the applicant and its affiliates, and other persons that hold interests in the applicant and their affiliates (including all members of the applicant's control group); and (iii) Certify that the personal net worth of the applicant (if an individual), each affiliate and each person that hold an interest in the applicant is less than $40 million. (d) Audits. Applicants and licensees claiming eligibility under this section shall be subject to random audits by the Commission. (e) Definitions. The terms affiliate, business owned by members of minority groups and women, consortium of small businesses, control group, gross revenues, members of minority groups, passive equity, personal net worth, and small business used in this section are defined in Sec. 24.320. (f) Unjust Enrichment. Designated entities using installment payments, bidding credits or tax certificates to obtain a narrowband PCS license will be subject to the following unjust enrichment provisions: (1) If a small business paying for a narrowband PCS license in installment payments seeks to transfer a license to a non-small business entity during the term of the license, the remaining principal balance must be repaid as a condition of the license transfer. (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 licensees shall first seek Commission approval and must make full payment of the remaining unpaid principal and any unpaid interest accrued through the date of the change as a condition of approval. Increases in gross revenues that result from equity investments that are not attributable to the licensee under Sec. 24.320(b)(2)(iv), revenues from operations, business development or expanded service shall not be considered changes in ownership structure under this paragraph. 7. Section 24.320 is added to subpart F to read as follows: Sec. 24.320 Definitions. (a) Scope. The definitions in this section apply to Secs. 24.309- 24.315 of this subpart, unless otherwise specified in those sections. (b) Small Business; Consortium of Small Businesses. (1) A small business is an entity that: (i) Together with its affiliates has average annual gross revenues that are not more than $40 million for the preceding three calendar years; (ii) Has no attributable investor or affiliate that has a personal net worth of $40 million or more; (iii) Has a control group all of whose members and affiliates are considered in determining whether the entity meets the $40 million annual gross revenues and personal net worth standards; and (iv) Such control group holds 50.1 percent of the entity's voting interest, if a corporation, and at least 25 percent of the entity's equity on a fully diluted basis, except that a business owned by members of minority groups and/or women (as defined in paragraph (c) of this section) may also qualify as a small business if a control group that is 100 percent composed of members of minority groups and/or women holds 50.1 percent of the entity's voting interests, if a corporation, and 50.1 percent of the entity's total equity on a fully diluted basis and no single other investor holds more than 49.9 percent of passive equity in the entity. (2) Attribution and Aggregation of Gross Revenues and Personal Net Worth. (i) Except as specified in paragraphs (b)(1) (iii) and (iv), the gross revenues of the applicant (or licensee) and its affiliates, and other persons that hold interests in the applicant (or licensee) and their affiliates shall be considered on a cumulative basis and aggregated for purposes of determining whether the applicant (or licensee) is a small business. (ii) The personal net worth of individual applicants (or licensees) and other persons that hold interests in the applicant (or licensee), and their affiliates, if less than $40 million, shall not be considered for purposes of determining whether the applicant (or licensee) is eligible to bid as a small business. (iii) Where an applicant (or licensee) is a consortium of small businesses, the gross revenues of each small business shall not be aggregated. (iv) The gross revenues and personal net worth of a person that holds an interest in the applicant (or licensee) shall not be considered so long as: (A) Such person holds no more than 25 percent of the applicant's (or licensee's) passive equity and is not a member of the applicant's or control group; and (B) The applicant has a control group that owns at least 25 percent of the applicant's total equity and, if a corporation, holds at least 50.1 percent of the applicant's voting interests. (v) The gross revenues, total assets and personal net worth of a person that holds an interest in the applicant shall not be considered so long as: (A) Such person holds no more than 49.9 percent of the applicant's (or licensee's) passive equity and is not a member of the applicant's control group; and (B) The applicant has a control group that consists entirely of members of minority groups and/or women and that owns at least 50.1 percent of the applicant's total equity and, if a corporation, at least 50.1 percent of the applicant's voting interests. (3) A small business corsortium is a conglomerate organization formed as a joint venture between mutually-independent business firms, each of which individually satisfies the definition of a small business. Note to paragraph (b): Ownership interests shall be calculated on a fully diluted basis; all agreements such as warrants, stock options and convertible debentures will generally be treated as if the rights thereunder already have been fully exercised, except that such agreements may not be used to appear to terminate or divest ownership interests before they actually do so. (c) Business Owned by Members of Minority Groups and/or Women. A business owned by members of minority groups and/or women is an entity: (1) That has a control group composed 100 percent of members of minority groups and/or women who are United States Citizens, and (2) Such control group owns and holds 50.1 percent of the voting interests, if a corporation, and (i) Owns and holds 50.1 percent of the total equity in the entity, provided that all other investors hold passive interests; or (ii) Holds 25 percent of the total equity in the entity, provided that no single other investor holds more than 25 percent passive equity interests in the entity. In a partnership, all general partners must be members of minority groups and/or women. Ownership interests shall be calculated on a fully diluted basis; all agreements such as warrants, stock options and convertible debentures will generally be treated as if the rights thereunder already have been fully exercised, except that such agreements may not be used to appear to terminate or divest ownership interests before they actually do so. (d) 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 quarterly financial statements for the relevant period. (e) Personal Net Worth. Personal net worth shall mean the market value of all assets (real and personal, tangible and intangible) owned by an individual, less all liabilities (including personal guarantees) owed by the individual in his individual capacity or as a joint obligor. (f) Members of Minority Groups. Members of minority groups includes individuals of African American, Hispanic-surnamed, American Eskimo, Aleut, American Indian and Asian American extraction. (g) Passive Equity. Passive equity shall mean: (1) For corporations, non-voting stock or stock that includes no more than fifteen percent of the voting equity; (2) For partnerships, joint ventures and other non-corporate entities, limited partnership interests and similar interests that do not afford the power to exercise control of the entity. (h) Control Group. A control group is an entity, or a group of individuals or entities, that possess de jure control and de facto control of an applicant or licensee, and as to which the applicant's or licensee's charters, articles of incorporation, bylaws, agreements and any other relevant documents (and amendments thereto) provide: (1) That the entity and/or its members own unconditionally at least 50.1 percent of the total voting interests of a corporation; (2) That the entity and/or its members receive at least 50.1 percent of the annual distribution of any dividends paid on the voting stock of a corporation; (3) That, in the event of dissolution or liquidation of a corporation, the entity and/or its members are entitled to receive 100 percent of the value of each share of stock in its possession and a percentage of the retained earnings of the concern that is equivalent to the amount of equity held in the corporation; and (4) That the entity and/or its members have the right to receive dividends, profits and regular and liquidating distributions from the business in proportion to its interest in the total equity of the applicant or licensee. Note to paragraph (h): Voting control does not always assure de facto control, such as, for example, when the voting stock of the control group is widely dispersed (see, e.g., Sec. 24.720(e)(2)(iii)). (i) Affiliate. Determinations regarding whether an individual or entity will be considered an affiliate of: (1) An applicant or (2) A person holding an attributable interest in an applicant under paragraph (b)(2) will be made pursuant to the general affiliation rules set forth in Sec. 24.710(l). 8. Section 24.406 is revised to read as follows: Sec. 24.406 Filing of Narrowband PCS applications, fees, and numbers of copies. (a) As prescribed by Secs. 24.305, 24.307, and Sec. 24.409, standard formal application forms applicable to the narrowband PCS may be obtained from either: (1) Federal Communications Commission, Washington, DC 20554; or (2) By calling the Commission's Forms Distribution Center, (202) 418-3676. (b) Applications for the initial provision of narrowband PCS service must be filed on FCC Form 175 in accordance with the rules in Sec. 24.305 and Part 1, Subpart Q of this chapter. In the event of mutual exclusivity between applicants filing FCC Form 175, only auction winners will be eligible to file subsequent long form applications on FCC Form 401 for initial narrowband PCS licenses. Mutually exclusive applications filed on Form 175 are subject to competitive bidding under those rules. Narrowband PCS applicants filing Form 401 need not complete Schedule B. (c) All applications for Narrowband PCS radio station authorizations (other than applications for initial provision of narrowband PCS service filed on FCC Form 175) shall be submitted for filing to: Federal Communications Commission, Washington, DC 20554, Attention: Narrowband PCS Processing Section. Applications requiring fees as set forth at Part 1, Subpart G of this chapter must be filed in accordance with Sec. 0.401(b) of this chapter. (d) All correspondence or amendments concerning a submitted application shall clearly identify the name of the applicant, applicant identification number or Commission file number (if known) or station call sign of the application involved, and may be sent directly to the Common Carrier Bureau, Narrowband PCS Processing Section. (e) Except as otherwise specified, all applications, amendments, correspondence, pleadings and forms (including FCC Form 175) shall be submitted on one original paper copy and with three microfiche copies, including exhibits and attachments thereto, and shall be signed as prescribed by Sec. 1.743 of this chapter. Unless otherwise provided by the FCC, filings of five pages or less are exempt from the requirement to submit on microfiche, as well as emergency filings like letters requesting special temporary authority. Those filing any amendments, correspondence, pleadings, and forms must simultaneously submit the original hard copy which must be stamped ``original''. In addition to the original hard copy, those filing pleadings, including pleadings under Sec. 1.2108 of this chapter shall also submit 2 paper copies as provided in Sec. 1.51 of this chapter. (1) Microfiche copies. Each microfiche copy must be a copy of the signed original. Each microfiche copy shall be a 148mm x 105mm negative (clear transparent characters appearing on an opaque background) at 24 x to 27 x reduction for microfiche or microfiche jackets. One of the microfiche sets must be a silver halide camera master or a copy made on silver halide film such as Kodak Direct Duplicatory Film. The microfiche must be placed in paper microfiche envelopes and submitted in a B6 (125 mm x 176 mm) or 5 x 7.5 inch envelope. All applicants must leave Row ``A'' (the first row for page images) of the first fiche blank for in-house identification purposes. (2) All applications and all amendments must have the following information printed on the mailing envelope, the microfiche envelope, and on the title area at the top of the microfiche: (i) The name of the applicant; (ii) The type of application (e.g. nationwide, regional, MTA, BTA, response channel); (iii) The month and year of the document; (iv) Name of the document; (v) File number, applicant identification number, and call sign, if assigned; and (vi) The identification number and date of the Public Notice announcing the auction in response to which the application was filed (if applicable). Each microfiche copy of pleadings shall include: (A) The month and year of the document; (B) Name of the document; (C) Name of the filing party; (D) File number, applicant identification number, and call sign, if assigned; (E) The identification number and date of the Public Notice announcing the auction in response to which the application was filed (if applicable). Abbreviations may be used if they are easily understood. 9. Section 24.422 is revised to read as follows: Sec. 24.422 Amendment of application for Narrowband Personal Communications Service filed on FCC Form 175. (a) The Commission will provide bidders a limited opportunity to cure defects in FCC Form 175 specified herein except for failure to sign the application and to make certifications. These are defects which may not be cured. See also Section 1.2105 of this chapter. (b) In the Narrowband PCS, applicants will be permitted to amend their Form 175 applications to make minor amendments to correct minor errors or defects such as typographical errors. Applicants will also be permitted to amend FCC Form 175, to make ownership changes or changes in the identification of parties to bidding consortia, provided such changes do not result in a change in control of the applicant and do not involve another applicant (or parties in interest to an applicant) who has applied for any of the same licenses as the applicant. Amendments which change control of the applicant will be considered major amendments. An FCC Form 175 which is amended by a major amendment will be considered to be newly filed and cannot be resubmitted after applicable filing deadlines. See also Sec. 1.2105 of this chapter. 10. Section 24.429 is amended by removing paragraph (b) and redesignating paragraphs (c) and (d) as (b) and (c), respectively. 11. Section 24.430 is revised to read as follows: Sec. 24.430 Opposition to applications. (a) Petitions to deny (including petitions for other forms of relief) and responsive pleadings for Commission consideration must comply with Sec. 1.2108 of this chapter and must: (1) Identify the application or applications (including applicant's name, station location, Commission file numbers and radio service involved) with which it is concerned; (2) Be filed in accordance with the pleading limitations, filing periods, and other applicable provisions of Secs. 1.41 through 1.52 of this chapter except where otherwise provided in Sec. 1.2108 of this chapter; (3) Contain specific allegations of fact which, except for facts of which official notice may be taken, shall be supported by affidavit of a person or persons with personal knowledge thereof, and which shall be sufficient to demonstrate that the petitioner (or respondent) is a party in interest and that a grant of, or other Commission action regarding, the application would be prima facie inconsistent with the public interest; (4) Be filed within thirty (30) days after the date of public notice announcing the acceptance for filing of any such application or major amendment thereto (unless the Commission otherwise extends the filing deadline); and (5) Contain a certificate of service showing that it has been mailed to the applicant no later than the date of filing thereof with the Commission. (b) A petition to deny a major amendment to a previously filed application may only raise matters directly related to the amendment which could not have been raised in connection with the underlying, previously filed application. This does not apply to petitioners who gain standing because of the major amendment. (c) Parties who file frivolous petitions to deny may be subject to sanctions including monetary forfeitures, license revocation, if they are FCC licensees, and may be prohibited from participating in future auctions. [FR Doc. 94-21016 Filed 8-25-94; 8:45 am] BILLING CODE 6712-01-M