[Federal Register Volume 65, Number 154 (Wednesday, August 9, 2000)]
[Proposed Rules]
[Pages 48658-48660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20240]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 97-82; FCC 99-384]


Communication Between Applicants in Commission Spectrum Auctions

AGENCY: Federal Communications Commission.

ACTION: Proposed rule; correction.

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SUMMARY: The Federal Communications Commission (Commission) published 
in the Federal Register of February 8, 2000, a document concerning 
communications between applicants in Commission spectrum auctions. This 
document contains a correction to that proposed rule by adding the 
Initial Regulatory Flexibility Analysis (IRFA) that was inadvertently 
omitted. This document also sets forth the deadlines for submitting 
comments and reply comments on this IRFA. It does not extend the 
deadlines previously established for submitting comments and reply 
comments on the rule amendments proposed.

DATES: Comments in response to the IRFA are due on or before August 30, 
2000; reply comments are due on or before September 6, 2000.

ADDRESSES: Office of the Secretary, Federal Communications Commission, 
445 12th Street, SW, Washington, D.C. 20554. See ``Filing 
Instructions.''

FOR FURTHER INFORMATION CONTACT: David Hu, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, at (202) 418-
0660.

SUPPLEMENTARY INFORMATION: In the Federal Register of February 8, 2000 
(65 FR 6113), the Commission published a summary of its Third Further 
Notice of Proposed Rulemaking (NPRM) in WT Docket No. 97-82. That 
document sought comment on proposed amendments that would: (1) Require 
any auction applicant that makes or receives a prohibited communication 
regarding bids or bidding strategies to

[[Page 48659]]

report such communication promptly to the Commission, and (2) reflect 
the clarification that an auction applicant is prohibited from 
discussing another applicant's bids or bidding strategies even if the 
first applicant does not discuss its own bids or bidding strategies. In 
that document the Commission also certified that the proposed 
amendments would not have a significant impact on small business 
entities. The IRFA set forth here supersedes that certification. The 
publication of this IRFA does not, however, extend the deadlines 
previously established for submitting comments and reply comments on 
the rule amendments proposed in the NPRM.
    In rule FR Doc. 00-2766 published on February 8, 2000, on page 
6114, column 3 and after line 7 add the following text.

Initial Regulatory Flexibility Analysis

    4. As required by the Regulatory Flexibility Act (RFA), the 
Commission has prepared this present Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on small 
entities by the policies and rules proposed in this Third Further 
Notice of Proposed Rulemaking (NPRM). Written and electronically filed 
public comments are requested on this IRFA. Comments must be identified 
as responses to the IRFA and must be filed by August 30, 2000; reply 
comments must be filed by September 6, 2000. The Commission will send a 
copy of the NPRM, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration. See 5 U.S.C. 603(a).

A. Need for and Objectives of the Proposed Rules

    5. This rulemaking proceeding is initiated to obtain comments 
concerning a proposal to amend 47 CFR 1.2105(c) to require any auction 
applicant that makes or receives a communication of bids or bidding 
strategies prohibited by 47 CFR 1.2105(c)(1) to disclose such 
communication to the Commission. The proposed amendment is intended to 
deter anticompetitive behavior during Commission spectrum auctions and 
foster competitive post-auction markets. We also seek comment on 
amending Sec. 1.2105(c)(1) to reflect our clarification that the rule 
prohibits an auction applicant from discussing another applicant's bids 
or bidding strategies, even if it does not discuss or disclose its own 
bids or bidding strategies. The proposed amendment is intended to 
facilitate compliance with the rule by ensuring that its text is 
unambiguous.

B. Legal Basis

    6. Authority for issuance of this NPRM is contained in sections 
4(i), 4(j), 303(r), 309(j) and 403 of the Communications Act of 1934, 
as amended, 47 U.S.C. 154(i), 154(j), 303(r), 309(j) and 403.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    7. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small organization,'' ``small business,'' and ``small governmental 
jurisdiction.'' The term ``small business'' has the same meaning as the 
term ``small business concern'' under the Small Business Act. A small 
business concern is one which: (i) is independently owned and operated; 
(ii) is not dominant in its field of operation; and (iii) satisfies any 
additional criteria established by the Small Business Administration 
(``SBA''). A small organization is generally ``any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.'' Nationwide, as of 1992, there were 
approximately 275,801 small organizations. ``Small governmental 
jurisdiction'' generally means ``governments of cities, counties, 
towns, townships, villages, school districts, or special districts, 
with a population of less than 50,000.'' As of 1992, there were 
approximately 85,006 such jurisdictions in the United States. This 
number includes 38,978 counties, cities, and towns; of these, 37,566, 
or 96 percent, have populations of fewer than 50,000. The Census Bureau 
estimates that this ratio is approximately accurate for all 
governmental entities. Thus, of the 85,006 governmental entities, we 
estimate that 81,600 (91 percent) are small entities. According to SBA 
reporting data, there were 4.44 million small business firms nationwide 
in 1992.
    8. The proposed amendments to Sec. 1.2105(c) will only apply to 
applicants in Commission spectrum auctions. The number of entities that 
may apply to participate in future Commission spectrum auctions is 
unknown. In the past, the number of small businesses that have 
participated in auctions has varied.

D. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements

    9. As a result of the actions proposed in this rulemaking 
proceeding, disseminators and recipients of communications prohibited 
by Sec. 1.2105(c) would be required to report such communications to 
the Commission. No other new reporting, recordkeeping, or other 
compliance requirements would be imposed on applicants or licensees as 
a result of the actions proposed in this rule making proceeding.

E. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    10. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives: (i) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (ii) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(iii) the use of performance rather than design standards; and (iv) an 
exemption from coverage of the rule, or any part thereof, for small 
entities. In the NPRM, we seek comment on our proposal to require 
auction applicants that make or receive a communication of bids or 
bidding strategies prohibited by Sec. 1.2105(c)(1) of the Commission's 
rules to report promptly such a communication to the Commission. We 
also propose to amend Sec. 1.2105(c)(1) to reflect our recent 
clarification of the rule that it prohibits an auction applicant from 
discussing another applicant's bids or bidding strategies even if the 
first applicant does not discuss its own bids or bidding strategies. We 
anticipate no significant impact on affected entities, including small 
businesses. We have nonetheless prepared this analysis in order to 
achieve a fuller record for the public. The proposed amendments to 
Sec. 1.2105(c) will have several public interest benefits. First, we 
believe that the proposed amendments will enhance the competitiveness 
of our auction process to the benefit of small auction applicants. 
Second, under the proposed amendments, general confidence in the 
integrity of our auctions should increase. Alternatively, public 
confidence could be undermined if all entities were not subject to the 
proposed disclosure requirements. Therefore, the public policy benefits 
of the proposed

[[Page 48660]]

amendments are great and we anticipate no significant impact on small 
businesses. We seek comment on these tentative conclusions.

F. Federal Rules that may Duplicate, Overlap, or Conflict with the 
Proposed Rules

    11. None.

Filing Instructions

    12. Comments on the IRFA may be filed using the Commission's 
Electronic Comment Filing System (ECFS) or by filing paper copies. See 
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 
(May 1, 1998). Comments filed through ECFS may be sent as an electronic 
file via the Internet to http://www.fcc.gov/e-file/ecfs.html. When 
completing the transmittal screen, commenters should include their full 
name, Postal Service mailing address, and the applicable docket or 
rulemaking number. Parties may also submit an electronic comment by 
Internet e-mail. To receive filing instructions for e-mail comments, 
commenters should send an e-mail to [email protected], and should include 
the following words in the body of the message, ``get form your e-mail 
address>.'' A sample form and directions will be sent in reply.
    13. Parties who choose to file by paper must file an original and 
four copies of each filing. If parties want each Commissioner to 
receive a personal copy of their comments, an original plus nine copies 
must be filed. All filings must be sent to the Commission's Secretary, 
Magalie Roman Salas, Office of the Secretary, Federal Communications 
Commission, 445 12th Street, SW, Room TW-A325, Washington, D.C. 20554. 
A courtesy copy should be delivered to David Hu, Auctions and Industry 
Analysis Division, Wireless Telecommunications Bureau, Federal 
Communications Commission, 445 12th Street, SW, Room 4-B511, 
Washington, D.C. 20554. Parties should reference WT Docket No. 97-82 in 
their comments. Parties who choose to file by paper should also submit 
their comments on diskette. Such a submission should be on a 3.5-inch 
diskette formatted in an IBM compatible format using Microsoft Word for 
Windows or compatible software. Diskettes should be submitted to: David 
Hu, Auctions and Industry Analysis Division, Wireless 
Telecommunications Bureau, Federal Communications Commission, 445 12th 
Street, SW, Room 4-B511, Washington, DC 20554. The diskette should be 
accompanied by a cover letter and should be submitted in ``read only'' 
mode. The diskette should be clearly labeled with the commenter's name, 
proceeding (including the docket number in this case--WT Docket No. 97-
82), type of pleading (comment or reply comment), date of submission, 
and the name of the electronic file on the diskette. The label should 
also include the following phrase: ``Disk Copy--Not an Original.'' Each 
diskette should contain only one party's pleadings, preferably in a 
single electronic file. In addition, commenters must send diskette 
copies to the Commission's copy contractor, International Transcription 
Service, Inc., 1231 20th Street, NW, Washington, DC 20036.

    Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 00-20240 Filed 8-8-00; 8:45 am]
BILLING CODE 6712-01-P