[Federal Register Volume 60, Number 143 (Wednesday, July 26, 1995)]
[Rules and Regulations]
[Pages 38276-38280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18451]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 95-69, FCC 95-308]


Fees for Products and Services in Connection With Competitive 
Bidding Procedures

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission has adopted a Report and Order which 
establishes a schedule of fees that participants in the competitive 
bidding process will be assessed for certain on-line computer services, 
bidding software, and bidder information packages. In establishing the 
fees, the Report and Order implements the Independent Offices 
Appropriations Act. The Commission's action in assessing the fees is to 
recoup the Federal Government's costs for providing such services and 
products.

EFFECTIVE DATE: July 26, 1995.

FOR FURTHER INFORMATION CONTACT:
Bert Weintraub, Wireless Telecommunications Bureau, Tel. No. (202) 418-
1316.

SUPPLEMENTARY INFORMATION: This is the complete text of the Report and 
Order which was adopted on July 21, 1995, and released on July 21, 
1995.

I. Introduction

    1. In this Report and Order, we amend Part 1 of the Commission's 
Rules to establish a schedule of fees that participants in the 
competitive bidding process will be assessed for certain on-line 
computer services, bidding software, and for bidder information 
packages, We conclude that assessment of these charges is reasonable 
and necessary to recoup the Commission's costs for providing such 
services and products. Specifically, we will assess the following fees 
to bidders and other interested parties:

     $2.30 per minute for access via a 900 number telephone 
service to the Commission's Wise Area Network (FCC WAN) system that 
will enable users to bid electronically from remote locations and 
access licensing databases.
     $175.00 for remote bidding software package.
     No charge for the first bidder information package 
requested, and a $16.00 fee for each additional package that is 
subsequently requested by the same party.

II. Background

    2. The Omnibus Budget Reconciliation Act of 1993, Public Law No. 
103-66, Title VI, section 6002(b), 107 Stat. 312, authorized the 
Commission to award licenses by competitive bidding where mutually 
exclusive applications for initial licensing are received for 
subscriber-based services for compensation. Under this authority, the 
Commission, to date, has conducted three auctions for Personal 
Communications Service (PCS) licenses.\1\ In previous Commission 
auctions, remote electronic bidding was provided by Business 
Information network (BIN). Bidders electing to bid electronically from 
remote locations (i.e., not at the FCC auctions site) paid 

[[Page 38277]]
BIN a fee for the remote bidding software and an on-line computer 
access charge. The fee covered BIN's costs to develop and provide 
remote bidding access.

    \1\ The three PCS auction conducted thus far are: (1) The 
Nationwide Narrowband PCS auction, held from July 25 through July 
29, 1994; (2) the Regional PCS Narrowband auction held October 26 
through November 8, 1994; and (3) the broadband PCS A and B block 
auction, held December 5, 1994, through March 13, 1995. All three of 
these auctions were conducted as simultaneous multiple round 
auctions. In a simultaneous multiple round auction, auction 
participants submit bids on specific licenses in each round of the 
auction. The auction closes when there are no new bids during a 
bidding round on any of the offered licenses. See Second Report and 
Order, PP Docket No. 93-253, 9 FCC Rcd 2348 (1994), 59 FR 22,980 
(1994).
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    3. Due to the experience gained from these three auctions, the 
Commission has developed its own remote electronic access system that 
utilizes Wide Area Network or WAN technology. This system (FCC Wan) 
would allow bidders and other interested parties to file applications 
electronically, bid electronically, access auction round results, and 
query FCC licensing databases from their personal computers from remote 
locations The Commission has also developed a number of proprietary 
software applications to support the remote electronic access system. 
Bidders and other interested parties would utilize a 900 number 
telephone service to access the FCC Wan system. The Commission has 
incurred significant costs in developing this remote electronic access 
system. Such costs include: infrastructure design and implementation; 
software development and testing; and other administrative/personnel 
costs.
    4. On May 16, 1995, we adopted a Notice of Proposed Rulemaking 
(Notice) \2\ seeking comment on a proposed schedule of fees to be 
assessed in future auctions for access to certain on-line computer 
services, and for obtaining proprietary bidding software as well as 
multiple bidder information packages. In order to recoup our costs, we 
proposed to charge a fee to bidders and other interested parties for 
access to the FCC WAN system and for obtaining the proprietary bidding 
software needed to make use of the system's electronic bidding 
functions. We also proposed recouping some of the printing and 
production costs associated with providing bidder information packages 
to prospective auction participants. Specifically, we indicated that 
parties would continue to receive one complimentary bidder information 
package, but suggested charging a fee for additional packages that are 
requested.

    \2\ WT Docket No. 95-69, 10 FCC Rcd 7066 (1995), 60 FR 26,860 
(1995).
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    5. We also observed that under government regulations any funds 
received from the sale of materials, software, or services must go 
directly to the U.S. Treasury. See 31 U.S.C. 3302(b); 69 Comp. 260, 
262(1990). We noted that the Independent Offices Appropriation Act of 
1952, as amended (IOAA), 31 U.S.C. 9701, permits the government to 
impose fees and charges for services and things of value. The IOAA 
authorizes agencies to prescribe regulations establishing charges for 
products and services provided by an agency. The charges must be fair 
and must be based on the costs to the government, the value of the 
service or product to the recipient, the public policy or interest 
served, and other relevant facts. See 31 U.S.C. 9701(b). In addition, 
we indicated that the Office of Management and Budget (OMB) has issued 
policy guidelines on use of fees in Circular A-25 (OMB Circular),\3\ 
which was recently revised. We noted that the revised OMB Circular, 
encourages the assessment of fees for government-provided products and 
services, and provides that agencies must establish fees based on 
either a ``full-cost'' or ``market price'' analysis.

    \3\ See FPC v. New England Power Co., 415 U.S. 345, 349-51 
(1974) (citing the OMB Circular).
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    6. More specifically, we proposed in the Notice to calculate our 
fees on the basis of ``market price'' \4\ rather than utilizing a 
``full cost'' pricing analysis.\5\ In particular, we proposed to 
utilize prevailing price methodology to determine the fees for the FCC 
WAN system use, the proprietary bidding software, and the additional 
bidder information packages. We proposed the following fees: (1) $4.00 
per minute for access via a 900 number to the FCC WAN system; (2) 
$200.00 for each remote bidding software package; and (3) $16.00 for 
each additional bidder information package (including postage) 
requested beyond the one complimentary copy that is made available. We 
sought comments on these charges, and on comparable market prices for 
similar products and services that are offered to the public.

    \4\ ``Market price'' means the price for a good, resource, or 
service that is based on competition in open markets, and creates 
neither a shortage nor a surplus of the good, resource, or service. 
See OMB Circular at 58 Fed. Reg. 38,145.
    \5\ ``Full cost'' includes all direct and indirect costs to any 
part of the Federal Government of providing a good, resource, or 
service. See OMB Circular at 58 FR 38,145.
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    7. BellSouth Corporation (BellSouth), Rural Telecommunications 
Coalition (RTC) and AirTouch Paging (AirTouch) filed formal comments 
and National Paging & Personal Communications Association (NPPCA) and 
Kennedy-Wilson International (KWI) filed informal comments by letter in 
response to the Notice.

III. Discussion

    8. BellSouth questions whether the Commission can assess fees for 
its auction-related services under IOAA, when Section 309(j)(8)(B) of 
the Communications Act already authorizes the Commission to recover the 
cost of conducting auctions from auction revenues. We conclude that 
assessing fees for use of the Commission's FCC WAN system as described 
above is fully consistent with our competitive bidding obligations 
under the Communications Act and with other laws and regulations that 
govern fees. See 47 U.S.C. 309(j)(8)(B); 31 U.S.C. 9701(a). Assessing a 
fee to bidders using certain on-line computer services and bidding 
software is a reasonable and efficient means of recovering the costs 
associated with developing, maintaining, enhancing, and upgrading this 
important system and its companion software. Indeed, our proposal 
supports a congressional goal set forth in the IOAA, which is that 
``each service or thing of value provided by an agency * * * to a 
person * * * be self-sustaining to the extent possible.'' See 31 U.S.C. 
9701(a). Moreover, contrary to BellSouth's suggestion, nothing in 
Section 309(j)(8)(B) prohibits the Commission from imposing fees on 
auction participants under the IOAA.
A. On-Line Computer Access Charges

    9. Comments. BellSouth, RTC, and AirTouch oppose the Commission's 
proposal to establish on-line access charges by comparing the FCC WAN 
system with the costs associated with access to Westlaw and Lexis-Nexis 
services, claiming the comparison is invalid. RTC contends that the fee 
for 900 service should be based upon ``full cost'' and not ``market 
price.'' In addition, BellSouth and NPPCA assert that there is no 
alternative to remote electronic bidding procedures. Additionally, 
NPPCA claims there is already a fee to file applications 
electronically.
    10. Decision. After considering the record, we will charge $2.30 
per minute for access to the FCC WAN system for purposes of bidding 
electronically, reviewing other applications (e.g., FCC Form 175 or FCC 
Form 600 applications), and obtaining available licensing database 
information. We emphasize, however, that we will not charge a user a 
fee for accessing this system for the purpose of filing a short- or 
long-form application electronically. There will be a clear delineation 
between services for which on-line access fees will be charged and 
services for which no on-line access fees will be charged. Users who 
download from the FCC's electronic bulletin board or from the Internet 
software specific to a service for which we intend to charge on-line 
access fees will receive clear notification that execution of this 
software will result in on-line access fees. In addition, when a caller 
executes software specific to a service for which 

[[Page 38278]]
we intend to charge on-line access fees, there will be a grace period, 
free of charge to the caller. During the grace period, the caller will 
be advised of the associated pricing, basic program content, sponsor 
information, and provided the option to disconnect without being 
charged. Charges to the caller will not begin until the grace period 
has ended. Instructions on downloading and executing software specific 
to a particular service will be made available by Public Notice prior 
to the availability of that service.
    11. In arriving at this $2.30 fee, we considered that the FCC WAN 
system will provide services that are similar to both the electronic 
bidding capabilities previously offered by BIN and to database services 
provided by Westlaw or Lexis-Nexis. For previous auctions, the cost for 
on-line electronic bidding through BIN was $23.00 per hour, which 
equals $.38 per minute (rounded). The average cost associated with 
access to on-line database services such as Westlaw or Lexis-Nexis is 
$4.23 per minute.
    12. While our new remote electronic bidding system is similar to 
BIN, which charged $23.00 per hour, FCC WAN system access to the 
Commission's licensing databases is more like the services provided by 
Westlaw or Lexis-Nexis. Both Westlaw and Lexis-Nexis provide on-line 
database access for research purposes to legal and other research 
professionals. We have therefore averaged the costs of these two types 
of services to arrive at a fee of $2.30 per minute for on-line access 
to the FCC WAN system. BellSouth and AirTouch argue that the Commission 
should use other information service providers such as CompuServe, 
Prodigy, Internet and America On-line as comparisons in determining a 
price per minute for access to the FCC WAN system. According to the 
commenters, these particular services range in price from $10.00 to 
$30.00 per month for limited access and $3.00 to $10.00 per hour for 
special services. These providers market their products and services to 
the general public, however, and their fees obviously reflect the high 
volume of users that are serviced by them. By comparison, the 
Commission's auction and licensing databases are of interest to a 
relatively small number of potential users. Westlaw or Lexis-Nexis, 
however, do service a small number of users with information that is 
akin to the licensing database information we plan to offer. 
Consequently, their pricing provides a more relevant comparison for 
establishing our fees here.
    13. We note that OMB guidelines provide that the price of the 
government-provided service must be adjusted to reflect the ``level of 
service and quality of the good or service'' when compared to a similar 
commercial service. OMB Circular at 58 FR 38145. In this regard, we 
believe it is reasonable to charge a higher per-minute fee for our 
remote bidding system than was charged by BIN because of the enhanced 
bidding functionality of the FCC WAN system. Specifically, electronic 
bidding via the FCC WAN system is expected to be faster and more 
efficient \6\ than BIN. Bidders will have the option of uploading bids 
from a file that they have created off-line, which will reduce the time 
required to submit and verify bid submissions. Also, bidders will be 
able to develop round results files based on their individual needs. In 
addition to remote bidding and round results, the system also will 
provide for access to the Commission's licensing databases (i.e., to 
locate and review other applications). Moreover, the FCC WAN system 
permits applications to be filed electronically (e.g., the FCC Form 175 
and the FCC Form 600).

    \6\ Our FCC WAN system is demonstrably faster than the BIN 
system used in previous auctions, according to our test results. For 
example, using BIN, the average amount of on-line time for the 
Regional Narrowband auction was 16 minutes, 37 seconds per bidding 
round whereas the average amount of time using the new system in a 
mock Regional Narrowband auction was 12 minutes, 26 seconds per 
bidding round (i.e., using a comparison of 30 licenses).
    14. In addition, we reject RTC's argument that charging for 900 
number service should be based on ``full cost'' instead of ``market 
price.'' First, OMB has given us the discretion to choose either 
methodology. Second, based on our examination of the two methodologies, 
we conclude that application of a ``market price'' approach is more 
practical and efficient for our purposes here. In this regard, we note 
that the Commission will incur costs of approximately $700,000 for one 
year of service for the expanded telephone cabling required to 
implement the Commission's on-line bidding system.\7\ This figure 
alone, however, does not reflect all of the cost components to be 
included within OMB's definition of ``full cost.'' Attempting to 
apportion ``full cost'' to individual auctions, which will each vary in 
duration, number of bidders and number of licenses, is administratively 
unworkable. Thus, we conclude that the ``full cost'' methodology is 
inappropriate in this context. This analysis answers BellSouth's 
concerns that we have not provided any estimate of Commission costs. We 
reiterate that market price remains the only viable methodology in 
establishing a fee for 900 service. Likewise, AirTouch's assertion that 
a $.15 to $.20 per minute charge for 900 service. Likewise, AirTouch's 
assertion that a $.15 to $.20 per minute charge for 900 service would 
recoup the Commission's costs is an attempt at the ``full cost'' 
recovery methodology, which we have declined to use.

    \7\ The Notice pointed out that the General Services 
Administration (``GSA'') was in the process of making arrangements 
to add 900 service to the Federal Telecommunications System 
(``FTS'') 2000 contract, which is the government-wide telephone 
system. The Notice should have additionally mentioned that point-to-
point telephone cabling upgrades were also added to the FTS 
contract. Since release of the Notice, installation of the expanded 
telephone cabling has been ordered but addition of the 900 service 
is pending and will not be added until this Report and Order has 
been adopted and released.
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    15. Finally, we are not persuaded by BellSouth's or NPPCA's 
argument that there is no alternative to remote electronic bidding 
procedures and therefore no fee should be charged for this service. We 
note that bidders may continue to place bids through a 800 telephone 
number service free of charge.\8\ In addition, contrary to NPPCA's 
belief, we have not established a fee for electronic filing of the FCC 
Form 175. In order to encourage auction participants to file their 
short-form applications electronically, as noted above, we do not plan 
to charge for this particular use.

    \8\ As in previous auctions, bidders still will have the option 
of placing their bids from remote locations via an 800 telephone 
number service at no charge. Round results information also will be 
available to bidders over the Internet and on a FCC electronic 
bulletin board at no charge.
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B. Auction Bidding Software

    16. Comments. BellSouth, RTC, and AirTouch generally argue that 
there are a number of comparable software packages on the market that 
are substantially cheaper than the $200.00 fee proposed by the 
Commission for fee proposed by the Commission for its bidding software 
package. They provided names of various computer companies, computer 
programs and protocols, as well as various dollar amounts in support of 
their arguments.
    17. Decision. After reviewing the comments and alternative prices 
suggested, we have decided to assess a fee of $175.00 for the remote 
bidding software package made available to each user on the FCC WAN 
system. We will not, however, charge for software that is necessary for 
users to file applications electronically on the FCC WAN system. Also, 
we will not charge for software 

[[Page 38279]]
that is needed for users to access the Commission's licensing databases 
(although as discussed supra, FCC WAN users will be charged $2.30 per 
minute for actually accessing the Commission's licensing database). We 
base our $175.00 price on the BIN bidding software which was made 
available to bidders in previous Commission auctions for a $200.00 
charge. We will reduce this fee by $25.00, however, because our system 
does not include a communications component that was provided as part 
of the BIN software package. Specifically, the $25.00 reduction 
represents the cost of certain technical protocols that are necessary 
for remote electronic bidders and other interested parties to access 
the Commission's remote electronic system.\9\

    \9\ Such technical protocols are available ``off the shelf'' and 
can be purchased for approximately $25.00. Examples of these 
protocols are Trumpet, NetManage Chameleon and Wollongong Pathway 
Access.
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    18. AirTouch argues that computer software programs such as 
Procomm, Telix, Crosstalk and SLIP PPP are appropriate comparisons to 
the FCC remote bidding software and should be used in determining the 
market price of our bidding software. For two reasons, we do not 
believe these software packages are ``price comparable'' to the bidding 
software we plan to offer. First, the programs cited by AirTouch are 
produced for large numbers of users whereas our software is targeted to 
a small group of users. Second, these programs are more limited in 
scope and function than the FCC's software. Specifically, the cited 
programs are communications and technical protocols only whereas the 
FCC's software package is a more sophisticated logic-based program that 
will enable users to submit and withdraw bids electronically.

C. Bidder's Information Package

    19. Comments. None of the commenting parties challenge the 
methodology used to calculate the $16.00 cost for each additional 
bidder information package. AirTouch nevertheless opposes a charge for 
additional bidder information packages, and claims it will be difficult 
to enforce the policy. KWI, on the other hand, states the Commission 
should charge $50.00 to $100.00 for bidder information packages to 
ensure they are distributed to persons with a serious interest in the 
auction process.
    20. Decision. We conclude that it is both fair and reasonable to 
provide one complimentary bidder information package to each person or 
entity, and to charge $16.00 for each additional package (including 
postage) requested by the same person or entity. The $16.00 charge is 
based on the average direct costs incurred by the Commission to 
duplicate, bind and mail such packages.
    21. We observe that nothing prevents a recipient of a complimentary 
bidder information package from making additional copies at his or her 
own expense. We are unpersuaded that charging for additional bidder 
information packages violates the public interest or will be unduly 
burdensome to enforce, as AirTouch suggests. We also reject KWI's 
suggestion that we charge $50.00 to $100.00 for bidder information 
packages since we think such charges would not be consistent with OMB 
guidelines.

D. Payment of Fees Methodology
    22. Comments. None of the commenting parties object to the proposed 
inclusion of the FCC WAN on-line access charges on the user's long 
distance telephone bill. Moreover, none of the commenters express any 
opposition to having the fees for the bidding software and the bidder 
information packages collected by credit card or cashier checks. KWI 
suggests expanding the payment method to include personal and corporate 
checks.
    23. Decision. Charges for on-line access to the FCC WAN system will 
be included in the form of 900 number service charges on each user's 
long distance telephone bill. Each user will pay its long distance 
telephone company directly for these charges. As for bidding software 
and additional bidder information packages, we will permit payment by 
credit card and cashier's check. Further, we agree that personal or 
corporate checks should be permitted and will permit payment in this 
manner as long as such checks sufficiently identify the payor. All 
checks should be made payable to the ``Federal Communications 
Commission'' or ``FCC.'' The Commission contracts with an auctioneer 
for each auction, and it is the auction contractor that will be 
responsible for administering payments of the bidding software and 
additional bidder information packages. Bidders may obtain the FCC's 
bidding software and bidder information packages from the FCC's auction 
contractor. Specific instructions for purchasing the software and 
bidder information packages will be made available by Public Notice 
prior to the start of each auction.

IV. Procedural Matters

    24. Pursuant to the Regulatory Flexibility Act (Pub. L. 96-354, 
Stat. 1165, 5 U.S.C. 601, et seq. (1981), the Commission attached an 
Initial Regulatory Flexibility Analysis (IRFA) as Appendix A to the 
Notice in WT Docket No. 95-69. Written comments on the IRFA were 
requested. The Commission's Final Regulatory Flexibility Analysis is as 
follows:
    A. Need and Purpose of the Action. This rulemaking proceeding is 
taken to implement the Commission's establishment and collection of 
fees for the Commission's proprietary remote software packages, on-line 
communications service charges, and bidder's information packages in 
connection with auctionable services. The rules specifically set forth 
the amounts that are to be paid in connection with bidding for 
auctionable services. The objective of this proceeding is to collect 
the necessary amounts through the fees being adopted, with the funds 
going to the U.S. Treasury.
    B. Issues Raised in Response to the Initial Regulatory Flexibility 
Analysis. There were no comments submitted in response to the Initial 
Regulatory Flexibility Analysis.
    C. Significant Alternatives Considered and Rejected. All 
significant alternatives have been addressed in this Report and Order.
    D. Description, Potential Impact, and Number of Small Entities 
Involved. Because the Commission will provide proprietary remote 
software packages, on-line communications services, and bidder's 
information packages directly, the fees assessed and collected will 
recover the Government's costs. While the number of small entities 
impacted by these fees is unknown, any such impact is likely to be 
insubstantial. Moreover, the Commission has provided alternative remote 
access options free of charge.
    25. For further information on the assessment and collection of the 
charges established by the rules adopted herein, contact Bert 
Weintraub, Wireless Telecommunications Bureau, Auctions Division, at 
(202) 418-1316.

V. Ordering Clause

    26. Accordingly, it is ordered That pursuant to the authority of 
Sections 4(i) and (j), 303(r), and 309(j) of the Communications Act of 
1934, as amended, 47 U.S.C. 154 (i) and (j), 303(r), and 309(j), as 
well as the Independent Offices Appropriation Act of 1952, as amended, 
31 U.S.C. 9701, Part 1 of the Commission's Rules, 47 C.F.R. Part 1, is 
amended to assess and collect fees in connection with auctionable 
services as set forth below, effective upon publication in the Federal 
Register. Pursuant to 5 U.S.C. 

[[Page 38280]]
553(d)(3), we conclude that ``good cause'' exists to have the rule 
amendments set forth in this Report and Order take effect immediately 
upon publication in the Federal Register. The Commission's next auction 
is presently scheduled to commence on August 29, 1995, and short-form 
applications for that auction are due on July 28, 1995.\10\ In order to 
provide for a smooth transition to the new computer system and software 
discussed in this Report and Order, it is necessary to institute our 
fee schedule prior to the start of this upcoming auction.

    \10\ See Public Notice, DA 95-1420, released June 23, 1995.
List of Subjects in 47 CFR Part 1

    Administrative practice and procedure.

Federal Communications Commission.
William F. Caton,
Acting Secretary.

Rule Changes

    Part 1 of Title 47 of the Code of Federal Regulations is amended as 
follows:

PART 1--PRACTICE AND PROCEDURE

    1. The authority citation continues to read as follows:

    Authority: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise 
noted.

    2. Sections 1.1181 and 1.1182 are added to Subpart G to read as 
follows:


Sec. 1.1181  Authority to prescribe and collect fees for competitive 
bidding-related services and products.

    Authority to prescribe, impose, and collect fees for expenses 
incurred by the government is governed by the Independent Offices 
Appropriation Act of 1952, as amended , 31 U.S.C. 9701, which 
authorizes agencies to prescribe regulations that establish charges for 
the provision of government services and products. Under this 
authority, the Federal Communications Commission may prescribe and 
collect fees for competitive bidding-related services and products as 
specified in Sec. 1.1182.


Sec. 1.1182  Schedule of fees for products and services provided by the 
Commission in connection with competitive bidding procedures.

------------------------------------------------------------------------
   Product or service           Fee amount           Payment procedure  
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On-line remote access    2.30 per minute........  Charges included on   
 900 Number Telephone                              customer's long      
 Service).                                         distance telephone   
                                                   bill.                
Remote Bidding Software  $175.00 per package....  Payment to auction    
                                                   contractor by credit 
                                                   card or check.       
                                                   (Public Notice will  
                                                   specify exact payment
                                                   procedures.)         
Bidder Information       First package free;      Payment to auction    
 Package.                 $16.00 per additional    contractor by credit 
                          package (including       card or check.       
                          postage) to same         (Public Notice will  
                          person or entity.        specify exact payment
                                                   procedures.)         
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[FR Doc. 95-18451 Filed 7-25-95; 8:45 am]
BILLING CODE 6712-01-M