[Federal Register Volume 71, Number 114 (Wednesday, June 14, 2006)]
[Notices]
[Pages 34348-34354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-9071]


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FEDERAL COMMUNICATIONS COMMISSION

[Report No. AUC-06-85-B (Auction No. 85); DA 06-874]


LPTV and TV Translator Digital Companion Channel Applications 
Filing Window for Auction No. 85; Auction Filing Window Rescheduled; 
Filing Requirements Regarding June 19-30, 2006 Window for LPTV and TV 
Translator Digital Companion Channel Applications

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document announces that the application filing window is 
rescheduled for the LPTV and TV Translator Digital Companion Channel 
Auction No. 85. This notice also provides the specific procedures for 
the filing of short-form applications and associated technical data for 
Auction No. 85.

DATES: FCC Short-Form Application Filing Window--June 19, 2006 through 
June 30, 2006.

FOR FURTHER INFORMATION CONTACT: Video Division, Media Bureau: Hossein 
Hashemzadeh (technical) or Shaun Maher (legal) at (202) 418-1600. 
Auction and Spectrum Access Division, Wireless Telecommunications 
Bureau: For legal questions: Lynne Milne at (202) 418-0660: For general 
auction questions: Linda Sanderson at (717) 338-2888.

SUPPLEMENTARY INFORMATION: This is a summary of the Auction No. 85 
Filing Window Public Notice released on April 20, 2006. The complete 
text of the Auction No. 85 Filing Window Public Notice, including 
attachments and related Commission documents, is available for public 
inspection and copying from 8 a.m. to 4:30 p.m. Monday through Thursday 
or from 8 a.m. to 11:30 a.m. on Friday at the FCC Reference Information 
Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 
20554. The Auction No. 85 Filing Window Public Notice and related 
Commission documents may also be purchased from the Commission's 
duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals 
II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, 
telephone 202-488-5300, facsimile 202-488-5563, or you may contact BCPI 
at its Web site: http://www.BCPIWEB.com. When ordering documents from 
BCPI please provide the appropriate FCC document number, such as, DA 
06-874. The Auction No. 85 Filing Window Public Notice and related 
documents are also available on the Internet at the Commission's Web 
site at: http://wireless.fcc.gov/auctions/85/.

I. General Information

A. Background

    1. The Federal Communications Commission (Commission) established 
rules and policies to facilitate the digital transition for low power 
television (LPTV), television (TV) translator and Class A TV stations. 
In its LPTV DTV Report and Order, 69 FR 69325, November 29, 2004, the 
Commission gave existing LPTV and TV translator service permittees and 
licensees the flexibility to choose one (and only one) of two methods 
to convert their existing analog stations to digital. Existing 
permittees and licensees in these services may either implement an on-
channel digital conversion of their analog channel or they may seek a 
(second) digital companion channel that may be operated simultaneously 
with their analog channel. Permittees and licensees in these services 
are not guaranteed a digital companion channel and must identify a 
channel that can be operated consistent with the Commission's 
interference protection rules. At a date to be determined in the 
future, the Commission will require that the permittee or licensee 
terminate analog operation, return one of their two channels to the 
Commission, and operate their station only in digital mode. Permittees 
and licensees in these services may choose only one of these two 
methods for converting their existing analog stations to digital.

B. Eligibility and Filing Restrictions

    2. This is a national filing window, meaning that applications for 
digital companion channels may be filed for any location in the United 
States and its

[[Page 34349]]

territories without geographic restrictions, subject to the 
Commission's technical rules, such as, 47 CFR 74.703 and 74.793. An 
application for a digital companion channel will not be accepted for 
filing if it fails to protect the authorized analog or digital 
facilities of a TV broadcast station, or the authorized analog facility 
of TV translator, LPTV, Class A television stations, or 700 MHz public 
safety or commercial wireless licensees. An application for a digital 
companion channel also must protect pending applications of TV 
translator, LPTV and Class A TV stations.
    3. Only existing LPTV, TV translator and Class A TV station 
permittees and licensees will be permitted to file for digital 
companion channels during this window. Applicants for digital companion 
channels will be required to identify their associated analog station. 
Digital companion channel applications will be treated as minor change 
applications pursuant to 47 CFR 787(4)(b). The protected contour of the 
proposed digital station must overlap the protected contour of the 
associated analog station. While the digital companion channel 
application must propose to serve the community of license of its 
associated analog facility, there is no requirement that the digital 
companion facility provide any prescribed level of service to the 
analog station's community of license.
    4. Permittees and licensees seeking digital operation must choose 
between an on-channel digital conversion of their analog station or 
operating a digital companion LPTV or TV translator station. Any 
permittee or licensee that has a license, construction permit, or 
pending application for on-channel digital conversion will not be 
eligible to submit an application for a digital companion channel for 
the same station, and any such companion digital channel application 
will be dismissed.
    5. Permittees and licensees filing in this window are eligible to 
apply for only a single digital companion channel for each existing 
analog channel. The Bureaus remind permittees and licensees that they 
will be required at some point--to be determined in the future--to 
return one of their two companion channels to the Commission, either 
the analog or the digital channel. The Bureaus also remind Class A TV 
permittees and licensees that all digital companion channels will be 
licensed as LPTV channels on a secondary, non-interference basis.

C. Application Freeze

    6. Due to the change in the schedule for the filing window, the 
previously-announced freeze on the filing of LPTV, TV translator and 
Class A television analog and digital minor change, analog and digital 
displacement, and digital on-channel conversion applications, which 
started on April 3, 2006, will extend through June 30, 2006. Following 
the completion of the digital companion channel window on June 30, 
2006, such minor change and displacement applications will once again 
be accepted. As an exception to this freeze, on-air operating stations 
demonstrating that they face imminent disruption of service may request 
special temporary authority where necessary to continue operations.

D. Mutually Exclusive Engineering Proposals

    7. Following the close of the digital companion application filing 
window, the Media Bureau staff will evaluate the filings and determine 
which of the engineering proposals are mutually exclusive and must be 
resolved through competitive bidding in an auction. In the LPTV DTV 
Report and Order, the Commission stated that it would provide a limited 
period after the filing of short-form applications in the digital 
companion channel filing window for applicants to utilize engineering 
solutions and settlements to resolve conflicts among their 
applications. The precise period for this settlement opportunity will 
be specified in a later public notice.

E. Noncommercial Educational Facility Election

    8. Section 309(j)(2)(C) of the statutory exemption from competitive 
bidding of applications for construction permits for noncommercial 
educational broadcast stations (NCE stations) applies to an engineering 
proposal for a digital companion channel filed by a LPTV, TV translator 
or Class A TV broadcast station that is owned and operated by a 
municipality and which transmits only noncommercial programs for 
educational purposes. The Commission held previously that proposals for 
NCE stations may be submitted for non-reserved spectrum in a filing 
window, subject to being returned as unacceptable for filing if there 
is any mutually exclusive application for a commercial station. 
Accordingly, in the short-form application (FCC Form 175), applicants 
will have an opportunity to designate their status as an NCE station 
application. No applicant will be allowed to change its NCE election 
after the application filing deadline.

F. Rules and Disclaimers

i. Prohibition of Collusion
    9. The Commission's part 1 and part 73 rules prohibit competing 
applicants from communicating with each other about bids, bidding 
strategies, or settlements unless such applicants have identified each 
other on their short-form applications as parties with whom they have 
entered into agreements under 47 CFR 1.2105(a)(2)(viii). Thus, pursuant 
to 47 CFR 1.2105(c) and 73.502(d), competing applicants must 
affirmatively avoid all communications with each other that affect or, 
in their reasonable assessment, have the potential to affect, bidding 
or bidding strategy, which may include communications regarding the 
post-auction market structure. This prohibition begins at the short-
form application filing deadline and ends at the down payment deadline 
after the auction, which will be announced in a future public notice. 
This prohibition applies to all applicants regardless of whether such 
applicants become qualified bidders or actually bid.
    10. In Auction No. 85, the rule would apply to applicants filing 
applications in the digital companion channel window with engineering 
proposals that are mutually exclusive. Even if applicants submit only 
one engineering proposal each that is mutually exclusive, they may not 
discuss with each other their bids or bidding strategies relating to 
any engineering proposal submitted by either applicant during the 
digital companion channel window.
    11. For purposes of this prohibition, section 1.2105(c)(7)(i) 
defines applicant as including all officers and directors of the entity 
submitting a short-form application to participate in the auction, all 
controlling interests of that entity, as well as all holders of 
partnership and other ownership interests and any stock interest 
amounting to 10 percent or more of the entity, or outstanding stock, or 
outstanding voting stock of the entity submitting a short-form 
application.
    12. Applicants in the digital companion channel window with 
engineering proposals that are mutually exclusive must not communicate 
indirectly about bids or bidding strategy. Such applicants are 
encouraged not to use the same individual as an authorized bidder. A 
violation of the anti-collusion rule could occur if an individual acts 
as the authorized bidder for two or more competing applicants, and 
conveys information concerning the substance of bids or bidding 
strategies between the applicants that the authorized bidder is 
authorized to represent in the auction.

[[Page 34350]]

Also, if the authorized bidders are different individuals employed by 
the same organization a violation similarly could occur. In such a 
case, at a minimum, applicants should certify on their applications 
that precautionary steps have been taken to prevent communication 
between authorized bidders and that applicants and their bidding agents 
will comply with the anti-collusion rule. A violation of the anti-
collusion rule could occur in other contexts, such as, an individual 
serving as an officer for two or more applicants. Moreover, the 
Commission has found a violation of the anti-collusion rule where a 
bidder used the Commission's bidding system to disclose its bidding 
strategy in a manner that explicitly invited other auction participants 
to cooperate and collaborate in specific markets, and has placed 
auction participants on notice that the use of its bidding system to 
disclose market information to competitors will not be tolerated and 
will subject bidders to sanctions. Bidders are cautioned that the 
Commission remains vigilant about prohibited communications taking 
place in other situations. For example, the Commission has warned that 
prohibited communications concerning bids and bidding strategies may 
include communications regarding capital calls or requests for 
additional funds in support of bids or bidding strategies to the extent 
such communications convey information concerning the bids and bidding 
strategies directly or indirectly. Bidders should use caution in their 
dealings with other parties, such as, members of the press, financial 
analysts, or others who might become a conduit for the communication of 
prohibited bidding information.
    13. The Commission's rules do not prohibit applicants from entering 
into otherwise lawful bidding agreements before filing their short-form 
applications, as long as they disclose the existence of the 
agreement(s) in their short-form application. If parties agree in 
principle on all material terms prior to the short-form filing 
deadline, each party to the agreement must identify the other party or 
parties to the agreement on its short-form application under section 
1.2105(c), even if the agreement has not been reduced to writing. If 
the parties have not agreed in principle by the short-form filing 
deadline, they should not include the names of parties to discussions 
on their applications, and they may not continue negotiations, 
discussions or communications with other applicants for engineering 
proposals that are mutually exclusive after the short-form filing 
deadline.
    14. By electronically submitting its short-form application, each 
applicant certifies its compliance with sections 1.2105(c) and 73.5002. 
However, the Bureaus caution that merely filing a certifying statement 
as part of an application will not outweigh specific evidence that 
collusive behavior has occurred, nor will it preclude the initiation of 
an investigation when warranted. The Commission intends to scrutinize 
carefully any instances in which bidding patterns suggest that 
collusion may be occurring. Any applicant found to have violated the 
anti-collusion rule may be subject to sanctions.
    15. Applicants are also reminded that, regardless of compliance 
with the Commission's rules, they remain subject to the antitrust laws. 
Compliance with the disclosure requirements of the Commission's anti-
collusion rules will not insulate a party from enforcement of the 
antitrust laws. To the extent the Commission becomes aware of specific 
allegations that may give rise to violations of the Federal antitrust 
laws the Commission may refer such allegations to the United States 
Department of Justice for investigation. If an applicant is found to 
have violated the antitrust laws or the Commission's rules in 
connection with its participation in the competitive bidding process, 
it may be subject to forfeiture of its upfront payment, down payment, 
or full bid amount and may be prohibited from participating in future 
auctions, among other sanctions.
    16. An applicant is required by 47 CFR 1.65 to maintain the 
accuracy and completeness of information furnished in its pending 
application and to notify the Commission within 30 days of any 
substantial change that may be of decisional significance to that 
application. Thus, section 1.65 requires an auction applicant to notify 
the Commission of any violation of the anti-collusion rules upon 
learning of such violation. Applicants are therefore required by 
section 1.65 to make such notification to the Commission immediately 
upon discovery. In addition, section 1.2105(c)(6) requires that any 
applicant that makes or receives a communication prohibited by section 
1.2105(c) must report such communication to the Commission in writing 
immediately, and in no case later than five business days after the 
communication occurs.
    17. Any report of a communication pursuant to sections 1.65 or 
1.2105(c)(6) must be submitted by electronic mail to the following 
address: [email protected]. The electronic mail report must include a 
subject or caption referring to Auction No. 85 and the name of the 
applicant. The Bureaus request that parties format any attachments to 
electronic mail as Adobe[reg]. Acrobat[reg] (pdf) or Microsoft[reg] 
Word documents.
    18. Applicants that are winning bidders will be required by 47 CFR 
1.2107(d) to disclose in their long-form applications the specific 
terms, conditions, and parties involved in all bidding consortia, joint 
ventures, partnerships, and agreements or other arrangements entered 
into relating to the competitive bidding process. Any applicant found 
to have violated the anti-collusion rule may be subject to sanctions.
    19. A summary listing of documents issued by the Commission and the 
Bureaus addressing the application of the anti-collusion rule may be 
found in Attachment C of the Auction No. 85 Filing Window Public Notice 
and these documents are available on the Commission's auction anti-
collusion Web page at http://wireless.fcc.gov/auctions/anticollusion.
ii. Due Diligence
    20. Potential bidders are reminded that they are solely responsible 
for investigating and evaluating all technical and marketplace factors 
that may have a bearing on the value of the broadcast facilities they 
are seeking in this application filing window. The FCC makes no 
representations or warranties about the use of this spectrum for 
particular services. Applicants should be aware that an FCC auction 
represents an opportunity to become an FCC construction permittee in 
the broadcast service, subject to certain conditions and regulations. 
An FCC auction does not constitute an endorsement by the FCC of any 
particular service, technology, or product, nor does an FCC 
construction permit or license constitute a guarantee of business 
success. Applicants should perform their individual due diligence 
before proceeding as they would with any new business venture.
    21. Applicants are strongly encouraged to conduct their own 
research prior to filing in the window in order to determine the 
existence of any pending administrative or judicial proceedings that 
might affect their decision regarding participation in the window. 
Participants in the digital companion channel window are strongly 
encouraged to continue such research throughout the auction. In 
addition, applicants should perform technical analyses sufficient to 
assure themselves that, should they prevail in competitive bidding for 
a specific

[[Page 34351]]

construction permit, they will be able to build and operate facilities 
that will fully comply with the Commission's technical and legal 
requirements.
    22. Prospective bidders should perform due diligence to identify 
and consider all proceedings that may affect the digital companion 
channel facilities they are seeking. Resolution of such matters could 
have an impact on the availability of their specified channel. Some 
pending applications, informal objections, petitions or other requests 
for Commission relief may not be resolved by the time of the window.
    23. Applicants are solely responsible for identifying associated 
risks and for investigating and evaluating the degree to which such 
matters may affect their ability to obtain their specified channel. 
Potential applicants are strongly encouraged to physically inspect any 
sites located in, or near, the service area for which they plan to 
file, and also to familiarize themselves with the environmental 
assessment obligations.
    24. Applicants in this window should note that full service 
television stations are in the process of converting from analog to 
digital operation and that stations may have pending applications to 
construct and operate digital television facilities, construction 
permits and/or licenses for such digital facilities. Applicants should 
investigate the impact such applications, permits and licenses may have 
on their ability to operate the facilities they are seeking in this 
window.
    25. Potential bidders may research the licensing database for the 
Media Bureau on the Internet in order to determine which channels are 
already licensed to incumbent licensees or previously authorized to 
construction permittees. Licensing records for the Media Bureau are 
contained in the Media Bureau's Consolidated Data Base System (CDBS) 
and may be researched on the Internet at: http://www.fcc.gov/mb/.
    26. The Commission makes no representations or guarantees regarding 
the accuracy or completeness of information in its databases or any 
third party databases, including, for example, court docketing systems. 
To the extent the Commission's databases may not include all 
information deemed necessary or desirable by a bidder, bidders may 
obtain or verify such information from independent sources or assume 
the risk of any incompleteness or inaccuracy in said databases. 
Furthermore, the Commission makes no representations or guarantees 
regarding the accuracy or completeness of information that has been 
provided by incumbent licensees and incorporated into the database.

G. National Environmental Policy Act Requirements

    27. Permittees must comply with the Commission's rules regarding 
the National Environmental Policy Act (NEPA). The construction of a 
broadcast facility is a Federal action and, for each such facility, the 
permittee must comply with the Commission's NEPA rules, including 47 
CFR 1.1305--1.1319. The Commission's NEPA rules require, among other 
things, that the permittee consult with expert agencies having NEPA 
responsibilities. The permittee must prepare environmental assessments 
for broadcast facilities that may have a significant impact in or on 
wilderness areas, wildlife preserves, threatened or endangered species 
or designated critical habitats, historical or archaeological sites, 
Indian religious sites, floodplains, and surface features. The 
permittee must also prepare environmental assessments for facilities 
that include high intensity white lights in residential neighborhoods 
or excessive radio frequency emission.

II. Pre-Auction Procedures

A. Auction Seminar--June 12, 2006

    28. On Monday, June 12, 2006, the Bureaus will sponsor a seminar 
for parties interested in participating in the filing window for 
Auction No. 85 at the Federal Communications Commission headquarters, 
located at 445 12th Street SW., Washington, DC. The seminar will 
provide attendees with information about pre-auction procedures, 
service and auction rules, and specific information on the procedures 
for filing the short-form applications and associated technical data.
    29. To register, complete the registration form provided as 
Attachment A of the Auction No. 85 Filing Window Public Notice and 
submit it by Thursday, June 8, 2006. Registrations are accepted on a 
first-come, first-served basis. The seminar is free of charge. For 
individuals who are unable to attend, an Audio/Video of this seminar 
will be available via Webcast from the FCC's Auction 85 Web page.

B. General Filing Requirements

    30. Applicants for LPTV and TV Translator digital companion 
channels must file a short-form application and the engineering data 
from FCC Forms 346 or 301-CA. Such information is required so that the 
staff can make mutual exclusivity determinations. A comprehensive 
review of applicants' technical proposals will be undertaken by the 
staff only following the submission of long-form applications by 
winning bidders post-auction, or by applicants identified as non-
mutually exclusive, and by applicants resolving application mutual 
exclusivity during the established settlement period.

C. Short-Form Application (FCC Form 175)--Due Before 6 p.m. ET on June 
30, 2006

    31. All applicants must submit a short-form application and 
associated technical data electronically via the FCC Auction System. 
This application must be submitted electronically. Applications may be 
filed any time beginning at 9 a.m. Eastern Time (ET) on June 19, 2006, 
but must be received at the Commission prior to 6 p.m. ET on June 30, 
2006. Applicants are strongly encouraged to file early and are 
responsible for allowing adequate time for filing their applications. 
Applicants may update or amend their electronic applications multiple 
times until the filing deadline on June 30, 2006. Late applications 
will not be accepted.
    32. Applicants should carefully review 47 CFR 1.2105 and 73.5002 
and must complete all items on the FCC Form 175. Applicants must submit 
required information as entries in the data fields of the electronic 
FCC Form 175 whenever a data field is available for that information. 
Attachments should not be used to provide information that can be 
supplied within the data fields of the electronic FCC Form 175. 
Applicants must always click on the SUBMIT button on the Certify and 
Submit screen of the electronic form to successfully submit their FCC 
Forms 175 or modifications. Any form that is not submitted will not be 
viewed by the FCC.

D. Application Processing

    33. After the close of the window, the Commission will make mutual 
exclusivity determinations with regard to all timely and complete 
filings. Applications received during the filing window that are not 
mutually exclusive with any other applications submitted in the filing 
window will be identified by subsequent public notice.
    34. The Bureaus will issue a public notice identifying mutually 
exclusive applications received during the window. That public notice 
also will specify a settlement period for resolving engineering 
proposal mutual exclusivity by the filing of technical amendments, 
dismissal requests, and requests for approval of universal settlements 
for eligible applicants. Mutually exclusive applicants may communicate 
with each other for the purpose of resolving conflicts only during the 
settlement period that will be specified in that forthcoming public 
notice.

[[Page 34352]]

    35. Technical amendments submitted by applicants to resolve 
conflicts must be minor, as defined by the applicable rules of the 
service, and must not create any new mutual exclusivity or other 
application conflict. An applicant may only file a technical amendment 
during the settlement period specified by public notice
    36. Commercial applications that remain mutually exclusive after 
the settlement period closes will proceed to auction. The Bureaus will 
then issue a public notice identifying the auction date and seek 
comment on procedures for further processing of the remaining mutually 
exclusive short-form applications.

III. Short-Form Application Requirements

    37. An application to participate in an FCC auction, referred to as 
a short-form application or FCC Form 175, provides information used in 
determining whether the applicant is legally, technically, and 
financially qualified to participate in Commission auctions for 
licenses or construction permits. For Auction No. 85, if an applicant 
claims eligibility for a bidding credit, the information provided in 
its short-form application will be used in determining whether the 
applicant is eligible for the claimed bidding credit. Entities seeking 
construction permits available in Auction No. 85 must follow the 
procedures prescribed in Attachment B of the Auction No. 85 Filing 
Window Public Notice. Applicants bear full responsibility for 
submission of accurate, complete and timely short-form applications. 
All applicants must certify on their short-form applications under 
penalty of perjury that they are legally, technically, financially and 
otherwise qualified to hold a license. Applicants should read carefully 
the instructions specified in the Auction No. 85 Filing Window Public 
Notice and should consult the Commission's rules to ensure that all the 
information that is required under the Commission's rules is included 
within their short-form applications.
    38. An entity may not submit more than one short-form application 
in a single auction. In the event that a party submits multiple short-
form applications, only one application will be accepted for filing.
    39. Applicants also should note that submission of a short-form 
application constitutes a representation by the certifying official 
that he or she is an authorized representative of the applicant, has 
read the form's instructions and certifications, and that the contents 
of the application, its certifications, and any attachments are true 
and correct. Submission of a false certification to the Commission may 
result in penalties, including monetary forfeitures, license 
forfeitures, ineligibility to participate in future auctions, and/or 
criminal prosecution.

A. Engineering Proposals

    40. In addition to submitting the short-form application, 
applicants must submit technical data from FCC Forms 301-CA or 346. 
Applicants will be required to submit the following information: (1) A 
description of the engineering proposal and its service type; (2) The 
engineering proposal purpose (always Digital Companion Channel for this 
auction); (3) Information identifying the existing facility, including 
Facility ID and Call Sign; (4) General information about this facility, 
including antenna location coordinates and technical specifications; 
(5) The antenna type (nondirectional, directional off-the-shelf, or 
directional composite); manufacturer and model; electrical beam tilt; 
and, for a directional antenna, rotation.
    41. For directional composite antenna types, the applicant must 
also specify relative field values for azimuths 0 to 350 degrees (in 
increments of 10 degrees). Up to five additional field values may be 
provided. Additional instructions on submitting the technical data 
portion of the short-form application are provided in the Auction No. 
85 Filing Window Public Notice.

B. New Entrant Bidding Credit

    42. The interests of the applicant, and of any individuals or 
entities with an attributable interest in the applicant, in other media 
of mass communications shall be considered when determining an auction 
applicant's eligibility for the New Entrant Bidding Credit. The 
applicant's attributable interests shall be determined as of the short-
form application filing deadline, June 30, 2006. Thus, the applicant's 
maximum new entrant bidding credit eligibility will be determined as of 
the short-form application filing deadline. Any applicant intending to 
divest a media interest or make any other ownership changes, such as 
resignation of positional interests, in order to avoid attribution for 
purposes of qualifying for the New Entrant Bidding Credit must have 
consummated such divestment transactions or have completed such 
ownership changes by no later than the short-form filing deadline, June 
30, 2006. Prospective applicants are reminded, however, that events 
occurring after the short-form filing deadline, such as the acquisition 
of attributable interests in media of mass communications, may cause 
diminishment or loss of the bidding credit, and must be reported 
immediately.
    43. Under traditional broadcast attribution rules, such as, 47 CFR 
74.3555 and its Note 2, those entities or individuals with an 
attributable interest in an applicant include: (1) All officers and 
directors of a corporate applicant; (2) Any owner of 5 percent or more 
of the voting stock of a corporate applicant; (3) All partners and 
limited partners of a partnership bidder, unless the limited partners 
are sufficiently insulated; and (4) All members of a limited liability 
company, unless sufficiently insulated. Further, any applicant 
asserting new entrant status must have de facto as well as de jure 
control of the entity claiming the bidding credit.
    44. In cases where an applicant's spouse or close family member 
holds other media interests, such interests are not automatically 
attributable to the applicant. The Commission decides attribution 
issues in this context based on certain factors traditionally 
considered relevant.
    45. Applicants also are reminded that attributable interests 
include the media interests held by very substantial investors in, or 
creditors of, an applicant claiming new entrant status. Specifically, 
the attributable mass media interests held by an individual or entity 
with an equity and/or debt interest in an applicant shall be attributed 
to that auction applicant for purposes of determining its eligibility 
for the New Entrant Bidding Credit, if the equity and debt interests, 
in the aggregate, exceed 33 percent of the total asset value of the 
applicant, even if such an interest is non-voting.
    46. A medium of mass communications is defined in 47 CFR 
73.5008(b). Generally, media interests will be attributable for 
purposes of the New Entrant Bidding Credit to the same extent that such 
other media interests are considered attributable for purposes of the 
broadcast multiple ownership rules. Full service noncommercial 
educational stations, on both reserved and non-reserved channels, are 
included within the definition of media of mass communications. 
However, attributable interests held by a winning bidder in existing 
low power television, television translator or FM translator facilities 
will not be counted among the winning bidder's other mass media 
interests in determining its eligibility for a New Entrant Bidding 
Credit.

[[Page 34353]]

C. Application Requirements

    47. In addition to the ownership information required pursuant to 
47 CFR 1.2105 and 1.2112, applicants are required to establish on their 
short-form applications that they satisfy the eligibility requirements 
to qualify for a New Entrant Bidding Credit. In those cases where a New 
Entrant Bidding Credit is being sought, a certification under penalty 
of perjury must be provided in completing the applicant's short-form 
application. An applicant claiming that it qualifies for a 35 percent 
new entrant bidding credit must certify that neither it nor any of its 
attributable interest holders have any attributable interests in any 
other media of mass communications. An applicant claiming that it 
qualifies for a 25 percent new entrant bidding credit must certify that 
neither it nor any of its attributable interest holders have any 
attributable interests in more than three media of mass communications, 
and must identify and describe such media of mass communications. 
Attributable interests are defined in 47 CFR 73.3555 and Note 2 of that 
section.
i. Bidding Credits
    48. Applicants that qualify for the New Entrant Bidding Credit, as 
specified in the applicable rule, are eligible for a bidding credit 
that represents the amount by which a bidder's winning bid is 
discounted. The size of a New Entrant Bidding Credit depends on the 
number of ownership interests in other media of mass communications 
that are attributable to the bidder-entity and its attributable 
interest-holders. A 35 percent bidding credit will be given to a 
winning bidder if it, and/or any individual or entity with an 
attributable interest in the winning bidder, has no attributable 
interest in any other media of mass communications, as defined in 47 
CFR 73.5008. A 25 percent bidding credit will be given to a winning 
bidder if it, and/or any individual or entity with an attributable 
interest in the winning bidder, has an attributable interest in no more 
than three mass media facilities, as defined in 47 CFR 73.5008. No 
bidding credit will be given if any of the commonly owned mass media 
facilities serve the same area as the proposed broadcast station, as 
defined in 47 CFR 73.5007(b), or if the winning bidder, and/or any 
individual or entity with an attributable interest in the winning 
bidder, has attributable interests in more than three mass media 
facilities. Bidding credits are not cumulative; qualifying applicants 
receive either the 25 percent or the 35 percent bidding credit, but not 
both.
ii. Unjust Enrichment
    49. Applicants should note that unjust enrichment provisions apply 
to a winning bidder that utilizes a bidding credit and subsequently 
seeks to assign or transfer control of its license or construction 
permit to an entity not qualifying for the same level of bidding 
credit.

D. Consortia and Joint Bidding Arrangements

    50. Applicants will be required to indicate on their applications 
whether they have entered into any explicit or implicit agreements, 
arrangements or understandings of any kind with any parties, other than 
those identified, regarding the amount of their bids, bidding 
strategies, or the particular construction permits on which they will 
or will not bid. Applicants also will be required to identify on their 
short-form applications any parties with whom they have entered into 
any consortium arrangements, joint ventures, partnerships or other 
agreements or understandings that relate in any way to the construction 
permits being auctioned, including any agreements relating to post-
auction market structure. If an applicant has had discussions, but has 
not reached a joint bidding agreement by the short-form application 
filing deadline, it would not include the names of parties to the 
discussions on its applications and may not continue such discussions 
with applicants with mutually exclusive engineering proposals after the 
application filing deadline.
    51. A party holding a non-controlling, attributable interest in one 
applicant will be permitted to acquire an ownership interest in, form a 
consortium with, or enter into a joint bidding arrangement with other 
applicants with mutually exclusive engineering proposals provided that 
(i) the attributable interest holder certifies that it has not and will 
not communicate with any party concerning the bids or bidding 
strategies of more than one of the applicants in which it holds an 
attributable interest, or with which it has formed a consortium or 
entered into a joint bidding arrangement; and (ii) the arrangements do 
not result in a change in control of any of the applicants. While the 
anti-collusion rules do not prohibit non-auction related business 
negotiations among auction applicants, applicants are reminded that 
certain discussions or exchanges could touch upon impermissible subject 
matters because they may convey pricing information and bidding 
strategies. Such subject areas included, but are not limited to, issues 
such as management, sales, local marketing agreements, rebroadcast 
agreements, and other transactional agreements.

E. Ownership Disclosure Requirements

    52. The Commission specified in the Broadcast Competitive Bidding 
First Report and Order, 63 FR 48615, September 11, 1998, that, for 
purposes of determining eligibility to participate in a broadcast 
auction, the uniform Part 1 ownership disclosure standards would apply. 
Therefore, all applicants must comply with the uniform Part 1 ownership 
disclosure standards and provide information required by 47 CFR 1.2105 
and 1.2112. Specifically, in completing the short-form application, 
applicants will be required to fully disclose information on the real 
party or parties-in-interest and ownership structure of the bidding 
entity. The ownership disclosure standards for the short-form 
application are prescribed in sections 1.2105 and 1.2112. Affiliates 
and controlling interests are defined at 47 CFR 1.2110. Each applicant 
is responsible for information submitted in its short-form application 
being complete and accurate.

F. Provisions Regarding Former and Current Defaulters

    53. Each applicant in Auction No. 85 must state under penalty of 
perjury on its short-form application whether or not the applicant, its 
affiliates, its controlling interests, or any affiliate of its 
controlling interests, have ever been in default on any Commission 
construction permit or license or have ever been delinquent on any non-
tax debt owed to any Federal agency. In addition, each applicant must 
certify under penalty of perjury on its short-form application that the 
applicant, its affiliates, its controlling interests, and the 
affiliates of its controlling interests, as defined by 47 CFR 1.2110, 
as of the filing deadline for applications to participate in a specific 
auction, are not in default on any payment for a Commission 
construction permit or license (including a down payment) and that they 
are not delinquent on any non-tax debt owed to any Federal agency. 
Prospective applicants are reminded that submission of a false 
certification to the Commission is a serious matter that may result in 
severe penalties, including monetary forfeitures, license revocations, 
exclusion from participation in future auctions, and/or criminal 
prosecution.

[[Page 34354]]

    54. Former defaulters--i.e., applicants, including any of its 
affiliates, any of its controlling interests, or any of the affiliates 
of its controlling interests, that in the past have defaulted on any 
Commission construction permit or license or been delinquent on any 
non-tax debt owed to any Federal agency, but that have since remedied 
all such defaults and cured all of their outstanding non-tax 
delinquencies--are eligible to bid in Auction No. 85, provided that 
they are otherwise qualified. However, former defaulters are required 
to pay upfront payments that are fifty percent more than the normal 
upfront payment amounts.
    55. In contrast, an applicant is not eligible to participate in 
competitive bidding in Auction No. 85 if the applicant, any of its 
affiliates, any of its controlling interests, or any of the affiliates 
of its controlling interests, is in default on any payment for any 
Commission construction permit or license (including a down payment) or 
is delinquent on any non-tax debt owed to any Federal agency as of the 
filing deadline for applications to participate in this auction.
    56. Applicants are encouraged to review the Wireless 
Telecommunications Bureau's previous guidance on default and 
delinquency disclosure requirements in the context of the auction 
short-form application process. Further information is provided in the 
Auction No. 85 Filing Window Public Notice.
    57. The Commission considers outstanding debts owed to the United 
States Government, in any amount, to be a serious matter. Under the red 
light rule, the Commission will not process applications and other 
requests for benefits filed by parties that have outstanding debts owed 
to the Commission. Prospective applicants in Auction No. 85 should note 
that any long-form applications filed after the close of competitive 
bidding will be reviewed for compliance with the Commission's red light 
rule, and such review may result in the dismissal of a winning bidder's 
long-form application. Further, applicants that have their long-form 
applications dismissed will be deemed to have defaulted and will be 
subject to default payments under 47 CFR 1.2104(g) and 1.2109(c).
    58. The Commission explicitly declared, however, that the 
Commission's competitive bidding rules are not affected by the red 
light rule. As a consequence, the Commission's adoption of the red 
light rule does not alter the applicability of any of the Commission's 
competitive bidding rules, including the provisions and certifications 
of 47 CFR 1.2105 and 1.2106, with regard to current and former defaults 
or delinquencies. Applicants are reminded that the Commission's Red 
Light Display System, which provides information regarding debts owed 
to the Commission, may not be determinative of any auction applicant's 
ability to comply with the default and delinquency disclosure 
requirements of 47 CFR 1.2105. Thus, while the red light rule may 
ultimately prevent the processing of long-form applications filed by 
auction winners, an auction applicant's red light status is not 
necessarily determinative of its eligibility to participate in this 
auction or its upfront payment obligation.

G. Other Information

    59. Applicants owned by minorities or women, as defined in 47 CFR 
1.2110(c)(2), may identify themselves in filling out their short-form 
applications regarding this status. This applicant status information 
is collected for statistical purposes only and assists the Commission 
in monitoring the participation of designated entities in its auctions.

H. Minor Modifications to Short-Form Applications

    60. Following the deadline for filing short-form applications on 
June 30, 2006, applicants in Auction No. 85 are permitted to make only 
minor changes to their applications. Pursuant to 47 CFR 1.2105, 
applicants are not permitted to make major modifications to their 
applications. Examples of major modifications include, but are not 
limited to, a major change to an applicant's engineering proposal, a 
change in control of the applicant, or an increase of a previously-
claimed bidding credit. No applicant will be allowed to change its 
noncommercial educational (NCE) election after the application filing 
deadline on June 30, 2006.
    61. Any application amendment and related statements of fact must 
be certified by: (1) The applicant, if the applicant is an individual, 
(2) one of the partners if the applicant is a partnership, (3) by an 
officer, director, or duly authorized employee, if the applicant is a 
corporation, (4) by a member who is an officer, if the applicant is an 
unincorporated association, (5) by the trustee if the applicant is an 
amateur radio service club, or (6) a duly elected or appointed official 
who is authorized to do so under the laws of the applicable 
jurisdiction, if the applicant is a governmental entity.
    62. An applicant must make permissible minor changes to its short-
form application, as defined by Sec.  1.2105(b), on-line. Applicants 
must click on the SUBMIT button in the FCC Auction System for the 
change to be submitted and considered by the Commission.
    63. In the event that changes cannot be made immediately in the FCC 
Auction System for any reason, an applicant must submit a letter, 
briefly summarizing the changes and subsequently update their short-
form applications in the FCC Auction System as soon as possible. Any 
letter describing changes to applicant's short-form application must be 
submitted by electronic mail to the following address: 
[email protected].

I. Maintaining the Accuracy of Short-Form Application Information

    64. Each applicant, pursuant to 47 CFR 1.65, must maintain the 
accuracy and completeness of information furnished in its pending 
application and notify the Commission within 30 days of any substantial 
change that may be of decisional significance to that application. 
Changes that cause a loss of or reduction in eligibility for a new 
entrant bidding credit must be reported immediately. For example, if 
ownership changes result in the attribution of new interest holders 
that affect the applicant's qualifications for a new entrant bidding 
credit, such information must be clearly stated in the applicant's 
notification.
    65. If an amendment reporting substantial changes is a major 
amendment as defined by 47 CFR 1.2105, the major amendment will not be 
accepted and may result in the dismissal of the short-form application. 
Applicants must report section 1.65 modifications to their short-form 
application by electronic mail and submit a letter briefly summarizing 
the changes to the following address: [email protected].

Federal Communications Commission.
Gary D. Michaels,
Deputy Chief, Auctions and Spectrum Access Division, WTB.
 [FR Doc. E6-9071 Filed 6-13-06; 8:45 am]
BILLING CODE 6712-01-P