[Federal Register Volume 60, Number 72 (Friday, April 14, 1995)]
[Notices]
[Pages 19050-19053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9346]
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FEDERAL COMMUNICATIONS COMMISSION
Public Information Collection Requirement Submitted to Office of
Management and Budget for Review
April 10, 1995.
The Federal Communications Commission has submitted the following
information collection requirement to OMB for review and clearance
under the Paperwork Reduction Act of 1980 (44 U.S.C. 3507).
Copies of this submission may be purchased from the Commission's
copy contractor, International Transcription Service, Inc., 2100 M
Street, N.W., Suite 140, Washington, DC 20037, (202) 857-3800. For
further information on this submission contact Judy Boley, Federal
Communications Commission, (202) 418-0214. Persons wishing to comment
on this information collection should contact Timothy Fain, Office of
Management and Budget, Room 10236 NEOB, Washington, DC 20503, (202)
395-3561.
Please note: On February 25, 1994 The Commission issued a Final
Rule (contained in the First Report and Order to PP Docket 93-253)
implementing Section 309(1) of the Communications Act--Competitive
Bidding. This rule requires that an application for voluntary transfer
of control or assignment under Secs. 1.924, 21.38, 22.39, 90.153,
94.47, and 95.821 where the license was acquired by the transferor or
assignor through a system of random selection shall together with its
application for transfer of control or assignment, file with the
Commission the associated contracts for sale, option agreements,
management agreements, or other documents disclosing the consideration
that the applicant would receive in return for the transfer or
assignment of its license. This information should include not only a
monetary purchase price, but also any future, contingent, inkind, or
other consideration (e.g., management or consulting contracts either
with or without an option to purchase; below-market financing). These
limited reporting requirements will enable the Commission to evaluate
whether further restrictions are needed.
At that time the Commission determined the new or modified
information collection and/or record retention requirements imposed by
this Rule were not subject to the Paperwork Reduction Act of 1980 44
U.S.C. 3501-3520. Upon further evaluation, the Commission is now
requesting expedited OMB review of this item by April 18, 1995, under
the provisions of 5 CFR 1320.18.
OMB Number: None.
Title: Implementation of Section 309(j) of the Communications Act,
Competitive Bidding, PP Docket 93-253, First Report and Order.
Action: Existing collection in use without OMB control number.
Respondents: Business or other for-profit.
Frequency of Response: On occassion.
Estimated Annual Burden: 1,100 respondents; 1 hour per response; 1,100
hours total annual burden.
Needs and Uses: The Commission will use the information to determine
whether the public interest would be served by granting a transfer of
control or an assignment of a license awarded through lottery
procedures.
The foregoing estimates include the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the burden
estimates or any other aspect of the collection of information
including suggestions for reducing the burden to the Federal
Communications Commission, Records Management Branch, Paperwork
Reduction Project, Washington, DC 20554.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
First Report and Order
In the Matter of: Implementation of Section 309(j) of the
Communications Act Competitive Bidding. PP Docket 93-253.
[[Page 19051]] Adopted: February 3, 1994
Released: February 4, 1994
By the Commission:
1. The Omnibus Budget Reconciliation Act of 1993 (``Budget
Act'')\1\ requires the Commission to prescribe rules that are
necessary to prevent the unjust enrichment of recipients of licenses
or permits that the Commission issues pursuant to the lottery
authority granted by Section 309(i)(4)(C) of the Communications Act
of 1934, as amended, 47 U.S.C. Sec. 309(i)(4)(C) (``Communications
Act''). This Report and Order responds to Congress' directive. We
conclude that, in addition to the rigorous requirements that apply
to lotteries in our existing rules, certain transfer disclosure
rules are necessary to prevent unjust enrichment with respect to
licenses issued by lottery. These requirements will enable us to
monitor the operation and effect of lotteries closely over the next
one to two years to enable us to determine if additional safeguards
are necessary.
\1\Pub. L. No. 103-66, title VI, Sec. 6002(b)(1)(B), 107 Stat.
388, ---- 1993).
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Background
2. Our authority to issue licenses by lottery stems from Section
309(i) of the Communications Act of 1934, as amended, 47 U.S.C.
Sec. 309(i). In the Budget Act, Congress added a new statutory
provision concerning unjust enrichment in the lottery context to
this section of the Communications Act, which states that
[N]ot later than 180 days after [August 10, 1993], the
Commission shall prescribe such transfer disclosures and
antitrafficking restrictions and payment schedules as are necessary
to prevent the unjust enrichment of recipients of licenses or
permits as a result of the methods employed to issue licenses under
this subsection.\2\
\2\47 U.S.C. Sec. 309(i)(4)(C).
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3. In the Notice of Proposed Rule Making (``Notice'' or
``Auction Notice'') implementing this and other sections of the
Budget Act, we noted that the legislative history of this section
indicated that the Commission might ``impose or assess payments in
order to prevent unjust enrichment resulting from trafficking in
licenses.''\3\ We tentatively concluded that we could assess
payments in order to prevent unjust enrichment from lotteries. We
also asked for comment on what other antitrafficking restrictions
were appropriate in addition to any payments we might impose. We
suggested, for example, that we might place a three year restriction
on the transfer of licenses gained through lotteries.
\3\Implementation of Section 309(j) of the Communications Act,
Competitive Bidding, PP Docket No. 93-253, 8 FCC Rcd 7635, 7649-50,
para. 89 (1993), quoting H.R. Rept. No. 111, 103d Cong., 1st sess.
256 (1993) (``House Report'').
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4. With respect to the term ``unjust enrichment,'' it appears
that Congress was concerned about transactions such as that
mentioned in the Notice, where we observed that lottery winners of
the rural cellular license for Columbia County, Wisconsin, sold it
for $62.3 million in 1990, 165 days after a construction permit had
been issued.\4\ The legislative history of the Budget Act is highly
critical of those who filed applications with no intention or
capability of providing service but instead ``only sought to acquire
a license at nominal cost and then sell it, making a large profit
and at the same time delaying the delivery of services to the
public.'' House Report at 259. The legislative history reemphasizes
the need for the Commission to limit ``the ability of lottery
winners to sell their license, so as to prevent the churning and
profiteering that has characterized lotteries.'' Id.\5\
\4\8 FCC Rcd at 7641 n. 22. For purposes of this rule making and
consistent with the intent of the Budget Act, ``unjust enrichment''
and ``speculation'' in the lottery context refer to the same act:
the transfer of a license acquired by lottery for substantial profit
prior to providing service to the public. Although the term
``speculation'' has also been associated with the large number of
lottery applications generated by so-called application mills, we
believe that the mere act of filing an application for a lottery
does not give rise to the ``unjust enrichment'' that the Budget Act
has required us to address.
\5\We note that this provision was adopted in conference from
the House bill without change. See H.R. Rept. No. 213, 103d Cong.,
1st sess. 489-90 (1993).
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5. The Budget Act reduces significantly the Commission's
authority to conduct lotteries. If the service or class of service
is potentially eligible for competitive bidding under the statutory
test in Section 309(j)(2)(A), then the Commission is precluded from
using lotteries to resolve mutual exclusivity among applications.
See 47 U.S.C. Sec. 309(i)(1)(B). Because under the Budget Act
certain mutually exclusive applications may still be resolved by a
lottery, we sought comment in the Auction Notice on how to implement
the subject statutory provision.
Comments
6. Although we received approximately 300 timely filed comments
and reply comments in this proceeding, we only received two comments
and no reply comments that directly addressed the subject statutory
provision. The Domestic Automation Company (DAC) stated that ``bona
fide entities who have lost in past lotteries often have had to buy
[Multiple Address Service (MAS)] licenses from those who never
intended to operate systems for their own use'' and urged that we
adopt strict rules and restrictions to stem speculation and
trafficking in licenses won by lottery. Comments of Domestic
Automation Company at 7. DAC also urged that the Commission adopt
restrictions that would discourage potential traffickers from
participating in Commission lotteries in the first place, such as a
requirement for the posting of performance bonds, similar financial
guarantees and annual spectrum user fees prior to the lottery. DAC
also argues that we should adopt restrictions on licensees who
either fail to construct or who construct and then quickly transfer
their licenses, presumably for a profit. Id.
7. The American Petroleum Institute (API) shares these
sentiments, noting that speculative interest in the radio spectrum
has grown to the point where the Commission now is flooded with
applications each time it announces an initial lottery for licenses.
Comments of API at 7. Like Domestic Automation Company, API states
that bona fide entities that lost in lotteries often have had to pay
greenmail to speculators to obtain licenses they need, and urges the
Commission to adopt strict rules and restrictions to stem
speculation and trafficking in licenses won by lottery. Id. at 8.
Discussion
8. The most egregious cases of unjust enrichment and speculation
associated with past lotteries have occurred in ``commercial''
services,\6\ where there are significant opportunities for the sale
of licensed communications properties to third parties for profit.
E.g., Cellular Radio Service. Therefore, possibly the strongest
measure to deter future instances of unjust enrichment in the
lottery context has already been taken by Congress when, in the
Budget Act, it granted the Commission auction authority for all
``commercial'' spectrum-based services, and effectively took away
the Commission's authority to conduct lotteries for such commercial
services.\7\ Thus, under the Budget Act, any new rules adopted to
implement the subject provision would potentially apply to only
three classes of license applications: 1) mutually exclusive
applications in certain private, internal-use services that meet the
legislative criteria in Section 309(j)(2)(A) for random selection,
but do not meet the legislative criteria for competitive bidding, 2)
a limited number of mutually exclusive applications in commercial
services accepted for filing prior to July 26, 1993, that the
Commission has the authority to either auction or lottery under the
Budget Act, and 3) possibly where a private, internal-use license
application is mutually exclusive with a ``commercial'' use
application for a license in ``shared spectrum,'' that is, spectrum
for which both entities are eligible to use.\8\
\6\See Auction Notice, 8 FCC Rcd at 7638-39 para. 25-28 (noting
that for purposes of Section 309(j) of the Communications Act,
``commercial service'' means a subscriber-based service, and this
term is substantively distinct from the term ``Commercial Mobile
Service,'' which is a term associated with Section 332 of the
Communications Act).
\7\See Auction Notice, 8 FCC Rcd at 7637, para. 17 (noting that
the Budget Act provides that the Commission may not issue any
license or permit by lottery after the date of enactment unless the
spectrum's use is not a type for which auctions are permitted, or
the application was accepted for filing before July 26, 1993).
Citing Section 6002(e) of the Budget Act (Special Rule). Under the
Budget Act, therefore, mutually exclusive applications accepted for
filing after July 26, 1993 may not be granted by lottery until the
Commission determines whether the applicable radio service is not
subject to competitive bidding under Section 309(j)(2)(A) of the
Communications Act.
\8\See Auction Notice, 8 FCC Rcd 7658 paras. 139-140.
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9. Furthermore, we note that the Commission has recently adopted
rules that should assist in preventing unjust enrichment from
lotteries in a variety of commercial services, including the
Interactive Video and Data Service (IVDS), [[Page 19052]] Multipoint
Distribution Service (MDS) and Cellular Radio Service. These rules
include, inter alia, transfer restrictions tied to an ascending
scale of build-out requirements over the license term, anti-
greenmail rules, settlement restrictions, and restrictions on
changes in control of ownership. The Commission has not yet had the
opportunity to fully evaluate the effectiveness of these rules
because (1) the rules were adopted within the last two years (e.g.,
cellular radio\9\ and MDS\10\), or the service is not yet
operational (e.g., IVDS\11\).
\9\See, e.g., Third Report and Order, Memorandum Opinion and
Order, and Recon., CC Docket 90-6, 7 FCC Rcd 7813 (1992) (adopting,
inter alia, anti-greenmail rules), and Report and Order, CC Docket
90-358, 7 FCC Rcd 719 (1992) (adopting anti-speculation rules in the
context for comparative renewal proceedings).
\10\See, e.g., Amendment of Parts 1, 2 and 21 of the
Commission's Rules in the 2.1 and 2.5 GHz bands, PR Docket 92-80, 8
FCC Rcd 1444 (1993) (adopting a variety of rules to deter unjust
enrichment in the MDS context).
\11\See 47 C.F.R. Part 95, Subpart F.
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10. Because in the future, only certain private, internal-use
services would be subject to lottery, and such services rarely
involve speculation or mutually exclusive applications, there does
not appear to be a significant need at this time for new lottery
rule to deter unjust enrichment. With respect to the limited number
of ``commercial'' service applications that may be lotteried, the
Commission has recently adopted rules in such services to deter
unjust enrichment based on extensive experience in conducting
lotteries in these services.\12\ Before adopting additional
measures, we believe it would be appropriate to gain some experience
in how well these existing rules operate in practice.
\12\See, e.g., CFR 22.920(c)(1)-(3), 22.927, 22.928, and 22,929
(cellular radio), and 95.819 and 95.821 (IVDS).
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11. In addition, the record compiled in this proceeding does not
support adopting major additional measures to combat unjust
enrichment in the lottery context. The two commenters that did
address this matter focused primarily on MAS. In MAS, however, a
licensee is required to meet certain construction benchmarks before
it can transfer a license.\13\ Therefore, while an MAS lottery may
attract a large number of applicants, the existing construction
benchmarks deter unjust enrichment by preventing licensees from
transferring an MAS license before it provides service to the
public.\14\
\13\See 47 CFR 94.47.
\14\Id. For this reason, we believe existing construction
benchmarks and associated transfer restrictions adequately deter
unjust enrichment in other services, such as the Specialized Mobile
Radio Service (SMRs) and 220-222 MHz Private Land Mobile Radio
Service.
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12. Further, the imposition of additional, more stringent
restrictions could have adverse consequences. Because the randomly
selected winner of a license may not value it the most highly,
additional transfer restrictions could operate to deprive the public
of valuable new communications services, reduce economic growth and
limit the expansion of jobs. Therefore, we do not believe that the
public interest would be served by adopting additional transfer
restrictions under present circumstances.
13. At the same time, we are anxious to ensure that our recently
adopted measures will prevent unjust enrichment. Therefore, we will
adopt a measure expressly recommended in the subject statutory
provision: Transfer disclosure requirements. We note that there was
no opposition to the adoption of this measure in the record.
Specifically, we will require lottery applicants for voluntary
transfer of control or assignment file with the Commission, along
with their application, the consideration they will receive if the
Commission grants their applications for voluntary transfer of
control or assignment. These limited reporting requirements will
enable the Commission to evaluate whether further restrictions are
needed.\15\ Such disclosures will also assist the Commission in
drafting its mandatory report to Congress that will compare the
results of the five-year auction experiment against the Commission's
lottery experience. See 47 U.S.C. Sec. 309(j)(12). In addition,
transfer price disclosure rules will allow the secondary market to
function efficiently under existing restrictions against unjust
enrichment.
\15\We note that in the case of Low Power Television, the only
broadcasting service subject to lotteries, the Commission currently
has transfer disclosure rules. See 47 CFR 73.35540, 73.3597 and FCC
Form 345.
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14. Accordingly, any applicant for voluntary transfer of control
or assignment would be required to file, together with its
application, the associated contracts for sale, option agreements,
management agreements, or other documents disclosing the total
consideration received in return for the transfer of its license.
This information should include not only a monetary purchase price,
but also any future, contingent, in-kind or other consideration
(e.g., management or consulting contracts either with or without an
option to purchase; below-market financing). The Commission has
existing procedures for maintaining the confidentiality of such
filings.\16\ The rules shall apply to any future applicant for
voluntary transfer of control or assignment where the subject
license was acquired by the transferor or assignor through a
Commission lottery.
\16\47 CFR 0.459.
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Conclusion
15. Because any rules adopted pursuant to Section 309(i)(4)(C)
of the Communications Act will apply to only a limited number of
noncommercial services where speculation rarely occurs, and because
the Commission has recently taken action in a variety of commercial
services to achieve the same goal of the subject statutory
provision, we limit our action at this time to the adoption of
transfer disclosure rules. If the data we collect as a result of
this requirement indicates that our existing rules are inadequate,
we may adopt additional measures to deter unjust enrichment in the
lottery context.
Final Regulatory Flexibility Analysis
18. A Final Regulatory Flexibility Analysis is contained in
Appendix B to this order.
Order Clause
19. Accordingly, It Is Ordered that Parts 1, 21, 22, 90, 94 and
95 of the Commission's Rules, 47 C.F.R. Parts 1, 21, 22, 90, 94 and
95 Are Amended as set forth in the Appendix A. It Is Further Ordered
that these rules are effective 90 days after publication in the
Federal Register.
20. Issuance of this First Report and Order is authorized under
the Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66,
Title VI, section 6002, and Sections 154(i), 309(i), 303(j), and
303(r) of the Communications Act of 1934, as amended, 47 U.S.C.
Secs. 154(i), 309(i), 303(j), and 303(r).
Contact Persons
21. For further information concerning this proceeding, contact
Marc Martin or Kent Nakamura, Office of Plans and Policy, (202) 653-
5940.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Appendix A--Final Rule
Part 1 of Chapter I of Title 47 of the Code of Federal
Regulations is amended as follows:
1. The authority citation for Part 1 continues to read as
follows:
Authority: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47
U.S.C. 154, 303: Implement 5 U.S.C. 552 and 21 U.S.C. 853(a), unless
otherwise noted.
2. Section 1.924 is amended by adding a new paragraph (d) to
read as follows:
Sec. 1.924 Assignment or transfer of control, voluntary or
involuntary.
(a) ***
(d) An applicant for voluntary transfer of control or assignment
under this section where the subject license was acquired by the
transferor or assignor through a system of random selection shall,
together with its application for transfer of control or assignment,
file with the Commission the associated contracts for sale, option
agreements, management agreements, or other documents disclosing the
consideration that the applicant would receive in return for the
transfer or assignment of its license. This information should
include not only a monetary purchase price, but also any future,
contingent, in-kind, or other consideration (e.g., management or
consulting contracts either with or without an option to purchase;
below--market financing).
Part 21 of Chapter I of Title 47 of the Code of Federal
Regulations is amended as follows:
3. The authority citation for Part 21 continues to read as
follows:
Authority: Secs. 1, 2, 4, 201-205, 208, 215, 303, 307, 313, 314,
403, 404, 410, 610; 48 Stat. as amended, 1064, 1066, 1070-1073,
1076, 1077, 1080, 1082, 1083, 1087, 1094, 1098, 1102; 47 U.S.C. 151,
154, 201-205, 208, 215, 218, 303, 307, 313, 314, 403, 404, 602; 47
U.S.C. 552.
4. Section 21.38 is amended by adding a new paragraph (g) to
read as follows:
Sec. 31.38 Assignment or transfer of station authorization.
(a) *** [[Page 19053]]
(g) An applicant for voluntary transfer of control or assignment
under this section where the subject license was acquired by the
transferor or assignor through a system of random selection shall,
together with its application for transfer of control or assignment,
file with the Commission the associated contracts for sale, option
agreements, management agreements, or other documents disclosing the
total consideration that the applicant would receive in return for
the transfer or assignment of its license. This information should
include not only a monetary purchase price, but also any future,
contingent, in-kind, or other consideration (e.g., management or
consulting contracts either with or without an option to purchase;
below--market financing).
Part 22 of Chapter I of Title 47 of the Code of Federal
Regulations is amended as follows:
5. The authority citation for Part 22 continues to read as
follows:
Authority: 47 U.S.C. 154, 303, unless otherwise noted.
6. Section 22.39 is amended adding a new paragraph (d) to read
as follows:
Sec. 22.39 Transfer of control or assignment of station
authorization.
(a) * * *
(d) An applicant for voluntary transfer of control or assignment
under this section where the subject license was acquired by the
transferor or assignor through a system of random selection shall,
together with its application for transfer of control or assignment,
file with the Commission the associated contracts for sale, option
agreements, management agreements, or other documents disclosing the
total consideration that the applicant would receive in return for
the transfer or assignment of its license. This information should
include not only a monetary purchase price, but also any future,
contingent, in-kind, or other consideration (e.g., management or
consulting contracts either with or without an option to purchase;
below-market financing).
Part 90 of Chapter I of Title 47 of the Code of Federal
Regulations is amended as follows:
7. The authority citation for Part 90 continues to read as
follows:
Authority: Sections 4, 303, and 332, 48, Stat. 1066, 1082, as
amended; 47 U.S.C. 154, 303 and 332, unless otherwise noted.
8. Section 90.153 is amended by adding two new sentences at the
end of the existing sentence to read as follows:
Sec. 90.153 Transfer of control or assignment of station
authorization.
An applicant for voluntary transfer of control or assignment
under this section where the subject license was acquired by the
transferor or assignor through a system of random selection shall,
together with its application for transfer of control or assignment,
file with the Commission the associated contracts for sale, option
agreements, management agreements, or other documents disclosing the
total consideration that the applicant would receive in return for
the transfer or assignment of its license. This information should
include not only a monetary purchase price, but also any future,
contingent, in-kind, or other consideration (e.g., management or
consulting contracts either with or without an option to purchase;
below-market financing).
Part 94 of Chapter I of Title 47 of the Code of Federal
Regulations is amended as follows:
9. The authority citation for Part 90 continues to read as
follows:
Authority: Sections 4, 303, 48 Stat. 1066, 1082, as amended; 47
U.S.C. 154, 303, unless otherwise noted.
10. Section 94.47 is amended by adding a new paragraph (c) to
read as follows:
Sec. 94.47 Transfer and assignment of station authorization.
(a) * * *
(c) An applicant for voluntary transfer of control or assignment
under this section where the subject license was acquired by the
transferor or assignor through a system of random selection shall,
together with its application for transfer of control or assignment,
file with the Commission the associated contracts for sale, option
agreements, management agreements, or other documents disclosing the
total consideration that the applicant would receive in return for
the transfer or assignment of its license. This information should
include not only a monetary purchase price, but also any future,
contingent, in-kind, or other consideration (e.g., management or
consulting contracts either with or without an option to purchase;
below-market financing).
Part 95 of Chapter I of Title 47 of the Code of Federal
Regulations is amended as follows:
11. The authority citation for Part 95 continues to read as
follows:
Authority: Sections 4, 303, 48 Stat. 1066, 1082, as amended; 47
U.S.C. 154, 303, unless otherwise noted.
12. Section 95.821 is amended by adding two new sentences after
the existing sentence to read as follows:
Sec. 95.821 Application for transfer of control.
An applicant for voluntary transfer of control or assignment
under this section where the subject license was acquired by the
transferor or assignor through a system of random selection shall,
together with its application for transfer of control or assignment,
file with the Commission the associated contracts for sale, option
agreements, management agreements, or other documents disclosing the
total consideration that the applicant would receive in return for
the transfer or assignment of its license. This information should
include not only a monetary purchase price, but also any future,
contingent, in-kind, or other consideration (e.g., management or
consulting contracts either with or without an option to purchase;
below--market financing).
* * * * *
Appendix B--Final Regulatory Flexibility Analysis
As required by Section 603 of the Regulatory Flexibility Act,
the Commission prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the expected impact of the proposals contained in the
Notice of Proposed Rule Making, PP Docket No. 93-253 on small
entities. By this Order, the Commission responds to a Congressional
directive contained in the Budget Act to consider measures to deter
unjust enrichment in the lottery context. The Commission received no
comments in response to the IRFA concerning unjust enrichment in the
lottery context. As noted in the text of the Order, we considered
and rejected more burdensome requirements designed to deter unjust
enrichment, such as additional transfer restrictions for licensees
that acquire their license by lottery. Rather, we adopted the less
onerous transfer disclosure requirement that is expressly
recommended in the Budget Act. In the case of some spectrum-based
services, such as Low Power Television, entities that file transfer
of control applications with the Commission are currently required
to submit information similar to what the Commission explicitly
requires by this Order: copies of documents that reveal the transfer
price for a license. Further, in other services, applicants for
voluntary transfer of control or assignment are currently required
to submit information in support of their request. Inasmuch as any
contracts, purchase agreements, or similar legal documents detailing
the consideration received by the transferor or assignor will
presumably already have been prepared by the parties to the
transaction for their own purposes, attaching a copy of such
documents to the application(s) submitted to the Commission should
not prove onerous. Accordingly, the Commission does not believe this
limited disclosure requirement adds a significant economic burden on
small entities.
[FR Doc. 95-9346 Filed 4-13-95; 8:45 am]
BILLING CODE 6712-01-M