[Federal Register Volume 71, Number 215 (Tuesday, November 7, 2006)]
[Notices]
[Pages 65098-65113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-18725]


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FEDERAL COMMUNICATIONS COMMISSION

[AU Docket No. 06-101; Report No. AUC-06-68-B (Auction No. 68); DA 06-
1949]


Auction of FM Broadcast Construction Permits Scheduled for 
January 10, 2007; Notice and Filing Requirements, Minimum Opening Bids, 
Upfront Payments and Other Procedures for Auction No. 68

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document announces the procedures and minimum opening 
bids for the upcoming auction of certain FM Broadcast construction 
permits. This document is intended to familiarize prospective bidders 
with the procedures and minimum opening bids for this auction.

DATES: Short Form applications to participate in Auction No. 68 must be 
filed before 6 p.m. on November 13, 2006. Auction No. 68 is scheduled 
to begin on January 10, 2007.

FOR FURTHER INFORMATION CONTACT: Auctions Spectrum Access Division, 
Wireless Telecommunications Bureau: For legal questions: Lynne Milne at 
(202) 418-0660. For general auction questions: Debbie Smith or Lisa 
Stover at (717) 338-2868. Audio Division, Media Bureau: For service 
rule questions: Lisa Scanlan or Thomas Nessinger at (202) 418-2700. To 
request materials in accessible formats (Braille, large print, 
electronic files, or audio format) for people with disabilities, send 
an e-mail to [email protected] or call the Consumer and Governmental 
Affairs Bureau at (202) 418-0530 or (202) 418-0432 (TTY).

SUPPLEMENTARY INFORMATION: This is a summary of the Auction No. 68 
Procedures Public Notice released on October 6, 2006. The complete text 
of the Auction No. 68 Procedures Public Notice, including attachments, 
as well as related Commission documents, are available for public 
inspection and copying from 8 a.m. to 4:30 p.m. Eastern Time (ET) 
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. 68 Procedures 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 by contacting 
BCPI at its Web site: http://www.BCPIWEB.com. When ordering documents 
from BCPI please provide the appropriate FCC document number, for 
example, DA 06-1949 for the Auction No. 68 Procedures Public Notice. 
The Auction No. 68 Procedures Public Notice and related documents are 
also available on the Internet at the Commission's Web site: http://wireless.fcc.gov/auctions/68/.

I. General Information

A. Introduction

    1. The Media Bureau and Wireless Telecommunications Bureau 
(collectively the Bureaus) announce the procedures and minimum opening 
bid amounts for the upcoming auction of certain FM broadcast 
construction permits scheduled to begin on January 10, 2007 (Auction 
No. 68). On August 24, 2006, in accordance with Section 309(j)(3) of 
the Communications Act of 1934, as amended, the Bureaus released a 
public notice seeking comment on reserve prices or minimum opening bid 
amounts and the procedures to be used in Auction No. 68. Interested 
parties submitted six comments and one reply comment in response to the 
Auction No. 68 Comment Public Notice, 71 FR 51822, August 31, 2006.
i. Construction Permits To Be Auctioned
    2. Auction No. 68 will offer nine construction permits in the FM 
broadcast service as listed in Attachment A of the Auction No. 68 
Procedures Public Notice. The construction permits to be auctioned are 
nine unsold FM construction permits from Auction Nos. 37 and 62. These 
construction permits are for vacant FM allotments, reflecting FM 
channels assigned to the FM Table of Allotments, pursuant to the 
Commission's established rulemaking procedures, and are designated for 
use in the indicated communities.
    3. Pursuant to the policies established in the Broadcast 
Competitive Bidding First Report and Order, 63 FR 48615, September 11, 
1998, applicants may apply for any vacant FM allotment listed in 
Attachment A of the Auction No. 68 Procedures Public Notice. When two 
or more short-form applications (FCC Form 175) specifying the same FM 
allotment are accepted for filing, mutual exclusivity (MX) exists for 
auction purposes, and thus, that construction permit for the FM 
allotment will be awarded by competitive bidding procedures. Once 
mutual exclusivity exists for auction purposes, even if only one 
applicant within an MX group submits an upfront payment, that applicant 
is required to submit a bid in order to obtain the construction permit. 
Any applicant that submits a short-form application that is accepted 
for filing but fails to timely submit an upfront payment will retain 
its status as an applicant in Auction No. 68 and will remain subject to 
the Commission's anti-collusion rules, but will not be eligible to bid, 
having purchased no bidding eligibility.
    4. A commenter contends that the Auction No. 68 Comment Public 
Notice is deficient in that it does not sufficiently encourage the 
submission of applications for noncommercial educational (NCE) 
broadcast stations. The commenter surmises that, because the 
construction permits available in Auction No. 68 were unsold previously 
in Auction Nos. 37 and 62, this shows a lack of interest in providing 
commercial service in these areas, and therefore suggests that 
encouraging applications for NCE stations might result in new NCE 
service to these locations. The commenter's suggestion rests on an 
erroneous premise that there was a lack of interest in these permits. 
Rather, as discussed further below, the permits in this auction 
received multiple bids in those prior auctions. These permits are 
available now because either a bidder withdrew a high bid during the 
previous auction or a winning bidder defaulted after the close of the 
auction.
    5. The same commenter also suggests that the Auction No. 68 Comment 
Public Notice was deficient because it did not contain instructions for 
the submission of applications for NCE stations, citing a portion of 47 
CFR 73.5002(a) which states that initial and other public notices will 
contain instructions for completing applications to participate in the 
broadcast auction, and applications for NCE stations. The commenter's 
argument fails to recognize that an initial auction public notice is 
limited to announcing the upcoming auction and specifying the period 
for short-form applications. The Commission's initial auction public 
notices for FM auctions do not supply specific application filing 
instructions. Rather, such instructions are typically supplied in a 
subsequent public notice, such as the Auction No. 68 Procedures Public 
Notice, which announces the

[[Page 65099]]

procedures to be followed for the upcoming broadcast auction and 
provides filing instructions. The instructions for the filing of short-
form applications for both commercial and NCE stations are provided in 
the Auction No. 68 Procedures Public Notice. Moreover, the Commission's 
competitive bidding and broadcast service rules are specifically 
designed to accommodate applicants for NCE broadcast stations who seek 
to use nonreserved spectrum. In order to maximize opportunity for 
noncommercial broadcasters, the Commission permits applicants for NCE 
stations the opportunity to obtain licenses to use nonreserved spectrum 
by participating in auction filing windows. An applicant for an NCE 
station is permitted to submit an application for nonreserved spectrum 
in an auction filing window, subject to being returned as unacceptable 
for filing, if such application is mutually exclusive with an 
application for a commercial station. The opening of the upcoming 
window for nonreserved FM allotments for Auction No. 68 provides a 
filing opportunity for applications for both NCE and commercial 
stations. As with the previous two FM auctions, applicants will be 
allowed to submit short-form applications (FCC Forms 175) for NCE 
broadcast stations on the specific nonreserved spectrum to be auctioned 
in Auction No. 68 in the forthcoming filing window.
    6. The broad principle of NCE auction participation is simply not a 
subject matter for which the Bureaus sought comment. The Bureaus 
released the Auction No. 68 Comment Public Notice pursuant to statutory 
directive. Section 309(j)(3) of the Communications Act requires the 
Commission to ensure that, in the scheduling of any competitive bidding 
under this subsection, an adequate period is allowed before issuance of 
bidding rules, to permit notice and comment on proposed auction 
procedures. As stated in the Auction No. 68 Comment Public Notice, to 
ensure that potential bidders have adequate time to familiarize 
themselves with the specific rules that will govern the day-to-day 
conduct of an auction, the Bureaus sought comment on a variety of 
auction-specific procedures prior to the start of each auction. 
Specifically, the Bureaus sought comment on particular mechanisms 
related to auction conduct, including the structure of the bidding 
rounds, establishment of minimum opening bids, activity requirements, 
activity rule waivers and information relating to auction delay, 
suspension or cancellation. Thus, the concerns raised by this commenter 
lie outside of the scope of this proceeding.
    7. Three entities filed jointly a petition for reconsideration in 
response to the Auction No. 68 Comment Public Notice, requesting that 
the Bureaus delete four permits from the Auction No. 68 inventory. In 
their view, the FM construction permits at Perry, Florida, Parowan, 
Utah, Cedar Key, Florida, and Tecopa, California should be removed from 
the inventory and awarded on a first-come, first-served basis. Each of 
these three entities had its short-form application for an NCE station 
dismissed in an earlier FM auction because each was mutually exclusive 
with one or more applications for a commercial station for the same FM 
construction permit. These entities contend that the Commission should 
follow a longstanding first come, first served policy, and should 
immediately issue construction permits for these four FM stations to 
them. These three former applicants claim that, because these permits 
were offered but not awarded in Auction Nos. 37 or 62, the permits 
should now be available to them. In the Auction No. 68 Procedures 
Public Notice the Bureaus denied this request. The Bureaus declined to 
adopt the proposal made by these three former applicants because it 
would violate the Commission's rules and policies as established in the 
NCE Second Report and Order, 68 FR 26220, May 15, 2003, concerning the 
processing of mutual exclusive NCE and commercial applications. 
Implementation of this proposal would require amendment of the 
Commission's competitive bidding and broadcast service rules. The 
Bureaus' process for seeking comment on auction procedures is not the 
appropriate forum in which either to challenge determinations made in a 
rulemaking proceeding or to propose additional rule changes.

B. Rules and Disclaimers

i. Relevant Authority
    8. Prospective applicants must familiarize themselves thoroughly 
with the Commission's general competitive bidding rules, including 
recent amendments and clarifications. Broadcasters should also 
familiarize themselves with the Commission's rules relating to the FM 
broadcast service contained in 47 CFR 73.201-73.333 and 73.1001-
73.5009. Prospective bidders must also be familiar with the rules 
relating to broadcast auctions and competitive bidding proceedings 
contained in 47 CFR 1.2001-1.2112 and 73.5000-73.5009. Prospective 
bidders must also be thoroughly familiar with the procedures, terms and 
conditions contained in the Auction No. 68 Procedures Public Notice, 
the Auction No. 68 Comment Public Notice, the Broadcast Competitive 
Bidding First Report and Order, the Broadcast Competitive Bidding First 
Reconsideration Order, 64 FR 24523, May 7, 1999, and the New Entrant 
Bidding Credit Reconsideration Order, 64 FR 44856, August 18, 1999, and 
the NCE Second Report and Order.
    9. The terms contained in the Commission's rules, relevant orders, 
and public notices are not negotiable. The Commission may amend or 
supplement the information contained in our public notices at any time, 
and will issue public notices to convey any new or supplemental 
information to applicants. It is the responsibility of all applicants 
to remain current with all Commission rules and with all public notices 
pertaining to this auction. Copies of most auctions-related Commission 
documents, including public notices, can be retrieved from the FCC 
Auctions Internet site at http://wireless.fcc.gov/auctions.
ii. Prohibition of Collusion; Compliance With Antitrust Laws
    10. Section 1.2105(c) of the Commission's rules prohibits 
applicants competing for construction permits in any of the same 
geographic license areas from communicating with each other about bids, 
bidding strategies, or settlements unless such applicants have 
identified each other on their short-form applications (FCC Forms 175) 
as parties with whom they have entered into agreements pursuant to 
Section 1.2105(a)(2)(viii). Thus, applicants for construction permits 
in any of the same geographic license areas must affirmatively avoid 
all communications with each other that affect or, in their reasonable 
assessment, have the potential to affect bids or bidding strategy. In 
some instances, this prohibition extends to 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. This prohibition applies to all applicants 
regardless of whether such applicants become qualified bidders or 
actually bid.
    11. The geographic license area is the market designation of the 
particular service. For the FM service, the market designation is the 
particular vacant FM allotment (e.g., Covelo, California, Channel 245A, 
Market FM366-A). In Auction No. 68, for example, the rule would apply 
to applicants designating

[[Page 65100]]

on the short-form application any of the same FM allotments. Therefore, 
applicants that apply to bid for an FM construction permit for the same 
allotment would be precluded from engaging in prohibited communications 
during the period from the short-form application deadline until the 
down payment deadline following the close of the auction. In addition, 
even if auction applicants each designate only one common FM allotment, 
they may not discuss with each other their bids or bidding strategies 
relating to any FM allotment that either designates on its short-form 
application.
    12. 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, and 
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.
    13. Applicants for construction permits for any of the same 
allotments must not communicate directly or indirectly about bids or 
bidding strategy. Accordingly, 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 such 
applicants. Also, if the authorized bidders are different individuals 
employed by the same organization (e.g., law firm or engineering firm 
or consulting firm), 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. Auction participants are hereby 
placed on notice that public disclosure of information relating to 
bidder interests, bids and bidder identities that typically has been 
revealed prior to and during past Commission auctions may violate the 
anti-collusion rule. Bidders should use caution in their dealings with 
other individuals, such as members of the press, financial analysts, or 
others who might become a conduit for the communication of prohibited 
bidding information.
    14. 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 any other applicants after the 
short-form filing deadline.
    15. By electronically submitting its short-form application, each 
applicant certifies its compliance with Sections 1.2105(c) and 73.7002. 
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 has stated that it 
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.
    16. Applicants are also reminded that, regardless of compliance 
with the Commission's rules, they remain subject to the antitrust laws, 
which are designed to prevent anticompetitive behavior in the 
marketplace. Compliance with the disclosure requirements of the 
Commission's anti-collusion rule will not insulate a party from 
enforcement of the antitrust laws. For instance, a violation of the 
antitrust laws could arise out of actions taking place well before any 
party submits a short form application. The Commission has cited a 
number of examples of potentially anticompetitive actions that would be 
prohibited under antitrust laws: for example, actual or potential 
competitors may not agree to divide territories horizontally in order 
to minimize competition, regardless of whether they split a market in 
which they both do business, or whether they merely reserve one market 
for one and another for the other. Similarly, the Bureaus have long 
reminded potential applicants and others that even where the applicant 
discloses parties with whom it has reached an agreement on the short-
form application, thereby permitting discussions with those parties, 
the applicant is nevertheless subject to existing 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.
    17. In addition, 47 CFR 1.65 requires an applicant 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 substantial change to the information or 
certifications included in its pending short-form application. 
Applicants are therefore required by Section 1.65 to report to the 
Commission any communications they have made to or received from 
another applicant after the short-form filing deadline that affect or 
have the potential to affect bids or bidding strategy unless such 
communications are made to or received from parties to agreements 
identified under Section 1.2105(a)(2)(viii). In addition, Section

[[Page 65101]]

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.
    18. Applicants that are winning bidders will be required to 
disclose in their long-form applications the specific terms, 
conditions, and parties involved in any bidding consortia, joint 
venture, partnership, or agreement or other arrangement entered into 
relating to the competitive bidding process.
    19. A summary listing of documents issued by the Commission and the 
Bureau addressing the application of the anti-collusion rule may be 
found in Attachment D of the Auction No. 68 Procedures Public Notice. 
These documents are available on the Commission's auction anti-
collusion Web page.
iii. Due Diligence
    20. Potential applicants are reminded that they are solely 
responsible for investigating and evaluating all technical and market 
place factors that may have a bearing on the value of the broadcast 
facilities in this auction. 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 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. In particular, potential applicants are strongly encouraged to 
review all underlying Commission orders, such as the specific report 
and order amending the FM Table of Allotments and allotting the FM 
channel(s) on which they plan to bid. Orders adopted in FM allotment 
rulemaking proceedings often include anomalies, such as, site 
restrictions or expense reimbursement requirements. Bidders are also 
responsible for reviewing all pending rulemaking petitions and open 
proceedings that might affect the FM allotment(s) on which they plan to 
bid. Additionally, potential bidders should perform technical analyses 
sufficient to assure themselves that, should they prevail in 
competitive bidding for a given FM allotment, they will be able to 
build and operate facilities that will fully comply with the 
Commission's technical and legal requirements.
    22. Potential applicants are also strongly encouraged to conduct 
their own research prior to the beginning of bidding in Auction No. 68 
in order to determine the existence of any pending administrative or 
judicial proceedings that might affect their decision to participate in 
the auction. Participants in Auction No. 68 are strongly encouraged to 
continue such research throughout the auction.
    23. Applicants should also be aware that certain pending and future 
proceedings, including applications (including those for modification), 
petitions for rulemaking, requests for special temporary authority, 
waiver requests, petitions to deny, petitions for reconsideration, 
informal oppositions, and applications for review, before the 
Commission may relate to particular applicants or incumbent permittees, 
or incumbent licensees, or the construction permits available in 
Auction No. 68. In addition, pending and future judicial proceedings 
may relate to particular applicants or incumbent permittees, or 
incumbent licensees, or the construction permits available in Auction 
No. 68. Prospective applicants are responsible for assessing the 
likelihood of the various possible outcomes, and considering their 
potential impact on construction permits available in this auction.
    24. Applicants should perform due diligence to identify and 
consider all proceedings that may affect the construction permits being 
auctioned and that could have an impact on the availability of spectrum 
for Auction No. 68. In addition, although the Commission may continue 
to act on various pending applications, informal objections, petitions, 
and other requests for Commission relief, some of these matters may not 
be resolved by the beginning of bidding in the auction.
    25. Applicants are solely responsible for identifying associated 
risks and for investigating and evaluating the degree to which such 
matters may affect their ability to bid on, otherwise acquire, or make 
use of the construction permits available in Auction No. 68. Potential 
applicants are strongly encouraged to physically inspect any 
prospective sites located in, or near, the service area for which they 
plan to bid, and also to familiarize themselves with the Commission's 
environmental assessment obligations.
    26. Applicants 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.
    27. 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 an applicant, applicants 
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 its databases.
iv. Use of Integrated Spectrum Auction System
    28. The Commission will make available a browser-based bidding 
system to allow bidders to participate in Auction No. 68 over the 
Internet using the Commission's Integrated Spectrum Auction System 
(ISAS or FCC Auction System). The Commission makes no warranty 
whatsoever with respect to the FCC Auction System. In no event shall 
the Commission, or any of its officers, employees or agents, be liable 
for any damages whatsoever (including, but not limited to, loss of 
business profits, business interruption, loss of business information, 
or any other loss) arising out of or relating to the existence, 
furnishing, functioning or use of the FCC Auction System that is 
accessible to qualified bidders in connection with this auction. 
Moreover, no obligation or liability will arise out of the Commission's 
technical, programming or other advice or service provided in 
connection with the FCC Auction System.
v. Bidder Alerts
    29. As is the case with many business investment opportunities, 
some unscrupulous entrepreneurs may attempt to use Auction No. 68 to 
deceive and defraud unsuspecting investors. Information about deceptive 
telemarketing schemes is available from the Federal Trade Commission 
(FTC) at (202) 326-2222 and from the Securities and Exchange Commission 
(SEC) at (202) 942-7040. Complaints about specific deceptive 
telemarketing investment schemes should be directed

[[Page 65102]]

to the FTC, the SEC, or the National Fraud Information Center at (800) 
876-7060.
vi. National Environmental Policy Act Requirements
    30. Permittees or licensees must comply with the Commission's rules 
regarding implementation of the National Environmental Policy Act 
(NEPA). The construction of a broadcast facility is a federal action 
and the permittee must comply with the Commission's NEPA rules for each 
such facility. The Commission's NEPA rules require, among other things, 
that the permittee or licensee consult with expert agencies having NEPA 
responsibilities, including the U.S. Fish and Wildlife Service, the 
State Historic Preservation Office, the Army Corps of Engineers and the 
Federal Emergency Management Agency (through the local authority with 
jurisdiction over floodplains). In assessing the effect of facilities 
construction on historic properties, the permittee or licensee must 
follow the provisions of the Nationwide Programmatic Agreement 
Regarding the Section 106 National Historic Preservation Act Review 
Process. The permittee must prepare environmental assessments for 
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 also must prepare environmental assessments for facilities 
that include high intensity white lights in residential neighborhoods 
or excessive radio frequency emission.

C. Auction Specifics

i. Auction Date
    31. Bidding in Auction No. 68 will begin on Wednesday, January 10, 
2007, as announced in the Auction No. 68 Comment Public Notice. The 
initial schedule for bidding will be announced by public notice at 
least one week before the start of the auction.
    32. Unless otherwise announced, bidding on construction permits 
will be conducted on each business day until bidding has stopped on all 
construction permits.
ii. Auction Title
    33. Auction No. 68--FM Broadcast
iii. Bidding Methodology
    34. The bidding methodology for Auction No. 68 will be simultaneous 
multiple round bidding. The Commission will conduct this auction over 
the Internet using the FCC Auction System. Qualified bidders are 
permitted to bid electronically via the Internet or by telephone. All 
telephone calls are recorded.
iv. Pre-Auction Dates and Deadlines
    35. Dates and Deadlines

Short-Form Application (FCC Form 175) Filing  November 6, 2006; 12 noon ET.
 Window Opens.
Short-Form Application (FCC Form 175) Filing  November 13, 2006; 6 p.m. ET.
 Window Deadline.
Upfront Payments (via wire transfer)........  December 11, 2006; 6 p.m. ET.
Mock Auction................................  January 8, 2007.
Auction Begins..............................  January 10, 2007.
 

v. Requirements for Participation
    36. Those wishing to participate in the auction must: (1) Submit a 
short-form application (FCC Form 175) electronically prior to 6 p.m. 
ET, November 13, 2006, following the electronic filing procedures set 
forth in Attachment B of the Auction No. 68 Procedures Public Notice; 
(2) submit a sufficient upfront payment and an FCC Remittance Advice 
Form (FCC Form 159) before 6 p.m. ET December 11, 2006, and (3) comply 
with all provisions outlined in this Public Notice and applicable 
Commission rules.
vi. General Contact Information
    37. See the Auction No. 68 Procedures Public Notice for the General 
Contact Information provided in a table format.

II. Short-Form Application (FCC FORM 175) Requirements

    38. 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 permits. The short-form application is the first part of 
the Commission's two-phased auction application process. In the first 
phase of this process, parties desiring to participate in the auction 
file streamlined, short-form applications in which they certify under 
penalty of perjury as to their qualifications. Eligibility to 
participate in bidding is based on the applicants' short-form 
applications and certifications, as well as their upfront payments. In 
the second phase of the process, winning bidders file a more 
comprehensive long-form application.
    39. Entities and individuals seeking construction permits available 
in Auction No. 68 must file a short-form application electronically via 
the FCC Auction System before 6 p.m. ET on November 13, 2006, following 
the procedures prescribed in Attachment B to the Auction No. 68 
Procedures Public Notice. If an applicant claims eligibility for a 
bidding credit, the information provided in its FCC Form 175 will be 
used in determining whether the applicant is eligible for the claimed 
bidding credit. Applicants bear full responsibility for submitting 
accurate, complete and timely short-form applications. All applicants 
must certify under penalty of perjury on their short-form applications 
that they are legally, technically, financially and otherwise qualified 
to hold a license. Applicants should read the instructions set forth in 
Attachment B of the Auction No. 68 Procedures Public Notice carefully 
and should consult the Commission's rules to ensure that all the 
information that is required under the Commission's rules and relevant 
public notices is included with their short-form applications.
    40. An entity may not submit more than one short-form application 
for a single auction. In the event that a party submits multiple short-
form applications, only one application will be accepted for filing.
    41. 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, that 
he or she has read the form's instructions and certifications, and that 
the contents of the application, its certifications, and any 
attachments are true, complete 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. Noncommercial Educational Facilities

    42. The opening of a window for nonreserved vacant FM allotments 
provides a filing opportunity for an applicant to apply for both 
noncommercial educational (NCE) and

[[Page 65103]]

commercial facilities. However, while non-mutually exclusive NCE 
applications will not be resolved through competitive bidding, any 
applications specifying NCE facilities that are mutually exlcusive with 
any applications specifying commercial facilities will be returned as 
unacceptable for filing pursuant to 47 CFR 73.5002(b).

B. New Entrant Bidding Credit

    43. The Commission adopted a tiered New Entrant Bidding Credit for 
broadcast auction applicants with no, or very few, other media 
interests.
i. Eligibility
    44. The interests of the applicant, and of any individuals or 
entities with an attributable interest in the applicant, in other media 
of mass communications, including both NCE and commercial full-power 
broadcast stations, shall be considered when determining an applicant's 
eligibility for the New Entrant Bidding Credit. The bidder's 
attributable interests shall be determined as of the short-form 
application (FCC Form 175) filing deadline--November 13, 2006. Thus, 
the applicant's maximum new entrant bidding credit eligibility will be 
determined as of the short-form application filing deadline. Applicants 
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--November 13, 2006. Prospective bidders 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.
    45. Under traditional broadcast attribution rules, including 47 CFR 
73.3555 Note 2, those entities or individuals with an attributable 
interest in a bidder include: (1) All officers and directors of a 
corporate bidder; (2) any owner of 5 percent or more of the voting 
stock of a corporate bidder; (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.
    46. In cases where an applicant's spouse or close family member 
holds other media interests, such interests are not automatically 
attributable to the bidder. The Commission decides attribution issues 
in this context based on certain factors traditionally considered 
relevant. Applicants should note that the mass media attribution rules 
were revised in 1999.
    47. Bidders are also reminded that, by the New Entrant Bidding 
Credit Reconsideration Order, the Commission further refined the 
eligibility standards for the New Entrant Bidding Credit, judging it 
appropriate to attribute 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 bidder 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.
    48. 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. Further, any bidder asserting new entrant 
status must have de facto as well as de jure control of the entity 
claiming the bidding credit pursuant to 47 CFR 73.5007. Typically, de 
facto control is evidence by ownership of at least 50.1 percent of an 
entity's voting stock or equivalent level of interest in cases where 
the bidder is not a corporate entity. De facto control is determined on 
a case-by-case basis.
    49. 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 bidder's other mass media 
interests in determining its eligibility for a New Entrant Bidding 
Credit. A medium of mass communications is defined in 47 CFR 
73.5008(b). Full service noncommercial educational stations, on both 
reserved and nonreserved channels, are included among ``media of mass 
communications'' as defined in Section 73.5008(b).

C. Application Requirements

    50. In addition to the ownership information required pursuant to 
Section 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.
i. Bidding Credits
    51. Applicants that qualify for the New Entrant Bidding Credit, as 
specified in 47 CFR 73.5007, 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: (1) 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; (2) 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; (3) 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.
    52. Bidding credits are not cumulative; qualifying applicants 
receive either the 25 percent or the 35 percent bidding credit, but not 
both. Attributable interests are defined in 47 CFR 73.3555 and Note 2 
of that section. 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.

[[Page 65104]]

ii. Installment Payments
    53. Installment payment plans will not be available in Auction No. 
68.

D. Permit Selection

    54. In Auction No. 68, applicants must select the construction 
permits on which they want to bid from the Eligible Permits list. There 
will be no opportunity to change construction permit selection after 
the short-form filing deadline. It is critically important that an 
applicant confirm its construction permit selections before submitting 
its short-form application because the FCC Auction System will not 
accept bids on construction permits that an applicant has not selected 
on its short-form application.
    55. In reply comments, one commenter argues that the Commission 
should change its method of creating vacant FM allotments, and that the 
Commission on its own motion should reallocate these nine FM allotments 
in Auction No. 68 to new towns, as well as permitting winning bidders 
to petition to change the city of license for any construction permits 
won in auction as soon as final payment is made. In the Auction No. 68 
Procedures Public Notice, the Bureaus declined to adopt this 
commenter's proposals to change the Commission's vacant FM allotment 
rules and procedures because this is not the appropriate forum and due 
to an insufficient record for such rule and procedural changes.

E. Disclosure of Bidding Arrangements

    56. Applicants will be required to identify in their short-form 
applications all parties with whom they have entered into any 
agreements, arrangements, or understandings of any kind relating to the 
construction permits being auctioned, including any agreements relating 
to post-auction market structure. Applicants also will be required to 
certify under penalty of perjury in their short-form applications that 
they have not entered and will not enter into any explicit or implicit 
agreements, arrangements or understandings of any kind with any 
parties, other than those identified in the application, regarding the 
amount of their bids, bidding strategies, or the particular 
construction permits on which they will or will not bid. 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 application and 
may not continue such discussions with any applicants after the 
deadline.
    57. After the filing of short-form applications, the Commission's 
rules do not prohibit a party holding a non-controlling, attributable 
interest in one applicant from acquiring an ownership interest in or 
entering into a joint bidding arrangement with other applicants 
provided that: (1) 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 entered into a joint 
bidding arrangement; and (2) 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 include, but are not limited to, issues such as management sales, 
local marketing agreements, rebroadcast agreements, and other 
transactional agreements. Further, as discussed above, compliance with 
the disclosure requirements of the Commission's anti-collusion rule 
will not insulate a party from enforcement of the antitrust laws.

F. Ownership Disclosure Requirements

    58. The Commission specified in the Broadcast Competitive Bidding 
First Report and Order that, for purposes of determining eligibility to 
participate in a broadcast auction, 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 applicant. The ownership disclosure standards for the 
short form are prescribed in Sections 1.2105 and 1.2112. Each applicant 
is responsible for information submitted in its short-form application 
being complete and accurate.
    59. In certain circumstances an applicant's most current ownership 
information on file with the Commission, if in an electronic format 
compatible with the short-form application (FCC Form 175) (such as 
information submitted in an on-line FCC Form 602 or in an FCC Form 175 
filed for a previous auction using ISAS) will automatically be entered 
into the applicant's short-form application. Applicants are responsible 
for ensuring that the information submitted in their short-form 
application for Auction No. 68 is complete and accurate. Accordingly, 
applicants should carefully review any information automatically 
entered to confirm that it is complete and accurate as of the deadline 
for filing the short-form application. Applicants can update any 
information that was entered automatically and needs to be changed 
directly in the short-form application.

G. Provisions Regarding Former and Current Defaulters

    60. Each applicant must state under penalty of perjury on its 
short-form application whether or not the applicant, its affiliates, 
its controlling interests, and the affiliates of its controlling 
interests, as defined by 47 CFR 1.2110, 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 as of the short-form filing deadline, the applicant, 
its affiliates, its controlling interests, and the affiliates of its 
controlling interests, as defined by Section 1.2110, 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.
    61. Former defaulters, i.e., applicants, including any of their 
affiliates, any of their controlling interests, or any of the 
affiliates of their 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. 
68, 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.
    62. Current defaulters, i.e., applicants, including any of their 
affiliates, any of their controlling interests, or any of the 
affiliates of their controlling interests, that are in default on any 
payment for any Commission construction permit or

[[Page 65105]]

license (including a down payment) or are delinquent on any non-tax 
debt owed to any Federal agency as of the filing deadline for 
applications to participate in this auction--are not eligible to bid in 
Auction No. 68.
    63. Applicants are encouraged to review the Wireless 
Telecommunications Bureau's previous guidance on default and 
delinquency disclosure requirements in the context of the short-form 
application process. For example, it has been determined that to the 
extent that Commission rules permit late payment of regulatory or 
application fees accompanied by late fees, such debts will become 
delinquent for purposes of 47 CFR 1.2105(a) and 1.2106(a) only after 
the expiration of a final payment deadline. Therefore, with respect to 
regulatory or application fees, the provisions of Sections 1.2105(a) 
and 1.2106(a) regarding default and delinquency in connection with 
competitive bidding are limited to circumstances in which the relevant 
party has not complied with a final Commission payment deadline. In 
contrast, even where Commission rules expressly permit late payment, 
subject to payment of an additional late fee, and do not impose a final 
payment deadline, the Commission in some cases may issue a demand for 
payment by a date certain. Failure to comply with the terms of a 
particular demand letter in the time period provided may render the 
subject debt delinquent, notwithstanding rules generally permitting 
late payment.
    64. The Commission considers outstanding debts owed to the United 
States Government, in any amount, to be a serious matter. The 
Commission adopted rules, including a provision referred to as the red 
light rule, that implement the Commission's obligations under the Debt 
Collection Improvement Act of 1996, which governs the collection of 
claims owed to the United States. 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. In the same rulemaking order, 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 Sections 1.2105 and 1.2106, with regard to 
current and former defaults or delinquencies. Applicants are reminded, 
however, that the Commission's Red Light Display System, which provides 
information regarding debts owed to the Commission, may not be 
determinative of an auction applicant's ability to comply with the 
default and delinquency disclosure requirements of Section 1.2105. 
Thus, while the red light rule ultimately may prevent the processing of 
long-form applications by auction winners, an auction applicant's red 
light status is not necessarily determinative of its eligibility to 
participate in this auction or of its upfront payment obligation.
    65. Prospective applicants in Auction No. 68 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. Applicants that have their long-form application 
dismissed will be deemed to have defaulted and will be subject to 
default payments under 47 CFR 1.2104(g) and 1.2109(c).

H. Other Information

    66. Applicants owned by members of minority groups and/or women, as 
defined in Section 1.2110(c)(3), 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, including rural telephone companies, in its auctions.

I. Minor Modifications to Short-Form Applications (FCC Forms 175)

    67. After the deadline for filing short-form applications (FCC 
Forms 175) at 6 p.m. ET on November 13, 2006, applicants are permitted 
to make only minor changes to their applications. Applicants are not 
permitted to make major modifications to their applications (e.g., 
change their construction permit selections, change control of the 
applicant, claim eligibility for a higher percentage of bidding credit 
or change their self-identification as noncommercial educational). 
Permissible minor changes include, for example, deletion and addition 
of authorized bidders (to a maximum of three) and revision of addresses 
and telephone numbers of the applicants and their contact persons.
    68. 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) 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) the trustee if the applicant is an 
amateur radio service club; or (6) a duly elected or appointed official 
who is authorized to make such certifications under the laws of the 
applicable jurisdiction, if the applicant is a governmental entity.
    69. An applicant must make permissible minor changes to its short-
form application, as such changes are defined by Section 1.2105(b), 
electronically, using the FCC Auction System. Applicants must click on 
the SUBMIT button in the FCC Auction System for the changes to be 
submitted and considered by the Commission. After the revised 
application has been submitted, a confirmation page will be displayed 
that states the submission time and date, along with a unique file 
number. It is recommended that an applicant print and retain a copy of 
the confirmation page.
    70. In addition, an applicant should submit a letter briefly 
summarizing the changes and subsequently update their short-form 
applications in ISAS as soon as possible.

    Note: After the filing window has closed, the auction system 
will not permit applicants to make certain changes, such as legal 
classification, NCE status, and bidding credit. Any letter 
describing changes to an applicant's short-form application must be 
submitted by electronic mail to the following address: 
[email protected].

    71. Applicants must not submit application-specific material 
through the Commission's Electronic Comment Filing System (ECFS), which 
was used for submitting comments regarding Auction No. 68 procedures.

J. Maintaining Current Information in Short-Form Applications (FCC Form 
175)

    72. As 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. Changes that cause a loss of or reduction in the 
percentage of bidding credit specified on the originally submitted Form 
175 application must be reported immediately. 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.

[[Page 65106]]

i. Maintaining the Accuracy of FCC Form 175 Information
    73. After the short-form filing deadline, applicants may make only 
minor changes to their FCC Form 175 applications, for example, deletion 
and addition of authorized bidders (to a maximum of three). Applicants 
must click on the SUBMIT button in the FCC Auction System for the 
changes to be submitted and considered by the Commission. In addition, 
applicants must submit a letter, briefly summarizing the changes, by 
electronic mail at the following address: [email protected].
    74. Applicants must not submit application-specific material 
through ECFS into the record of the proceeding, which was used for 
submitting comments concerning Auction No. 68 procedures.

III. Pre-Auction Procedures

A. Auction Seminar

    75. There will be no auction seminar for Auction No. 68. A 
previously held FM broadcast auction seminar is available for 
individuals to view from the FCC's Web page at http://wireless.fcc.gov/auctions/62/. To the extent that competitive bidding procedures 
discussed in that seminar presentation may have differed from those 
described in the Auction No. 68 Procedures Public Notice, the 
procedures and instructions described in the latter public notice will 
control and must be followed.

B. Short-Form Application (FCC Form 175)--Due Before 6 p.m. ET on 
November 13, 2006

    76. In order to be eligible to bid in this auction, applicants must 
first submit an FCC Form 175 application electronically via the FCC 
Auction System. This application must be received at the Commission 
prior to 6 p.m. ET on November 13, 2006. Late applications or 
unconfirmed submissions of electronic data will not be accepted. There 
is no application fee required when filing an FCC Form 175. However, to 
be eligible to bid, an applicant must submit an upfront payment.
    77. Applications may generally be filed at any time beginning at 
noon ET on November 6, 2006, until 6 p.m. ET on November 13, 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 applications multiple times until the filing 
deadline on November 13, 2006. Information about accessing, completing 
and viewing the FCC Form 175 is included in Attachment B of the Auction 
No. 68 Procedures Public Notice.
    78. An applicant must always click on the SUBMIT button on the 
Certifiy & Submit screen of the electronic form to successfully submit 
its FCC Form 175 or modifications. Any form that is not submitted will 
not be reviewed by the FCC. After the application has been submitted, a 
confirmation page will be displayed that states the submission time and 
date, along with a unique file number. It is recommended that an 
applicant print and retain a copy of the confirmation page.

C. Application Processing and Minor Corrections

    79. After the deadline for filing the FCC Form 175 applications has 
passed, the FCC will process all timely submitted applications to 
determine which are acceptable for filing, and subsequently will issue 
a public notice identifying: (1) Those applications accepted for 
filing; (2) those applications rejected; and (3) those applications 
which have minor defects that may be corrected, and the deadline for 
resubmitting corrected applications.
    80. Non-mutually exclusive applications will be listed in a 
subsequent public notice to be released by the Bureaus. Such 
applications will not proceed to auction, but will proceed in 
accordance with instructions set forth in that public notice. All 
mutually exclusive applications will be considered under the relevant 
procedures for conflict resolution. Mutually exclusive commercial 
applications will proceed to auction. In the NCE Second Report and 
Order, the Commission held that applications for NCE FM stations on 
nonreserved spectrum, filed during an FM filing window, will be 
returned as unacceptable for filing, if mutually exclusive with any 
application for a commercial station. Accordingly, if an FCC Form 175 
filed during the Auction No. 68 filing window identifying the station 
as noncommercial educational is mutually exclusive with any application 
filed during that window by an applicant for a commercial station, the 
former will be returned as unacceptable for filing. However, if 
stations are not identified by applicants on the short-form application 
as NCE, the applications will be considered as a matter of law as 
applications for commercial broadcast stations.
    81. As described more fully in the Commission's rules, after the 
short-form filing deadline on November 13, 2006, applicants may make 
only minor corrections to their FCC Form 175 applications. Applicants 
will not be permitted to make major modifications to their 
applications.

D. Upfront Payments--Due December 11, 2006

    82. In order to be eligible to bid in the auction, applicants must 
submit an upfront payment accompanied by an FCC Remittance Advice Form 
(FCC Form 159). After completing the FCC Form 175, filers will have 
access to an electronic version of the FCC Form 159 that can be printed 
and sent by facsimile to Mellon Bank in Pittsburgh, PA. All upfront 
payments must be received in the proper account at Mellon Bank before 6 
p.m. ET on December 11, 2006.
i. Making Auction Payments by Wire Transfer
    83. Wire transfer payments must be received before 6 p.m. ET on 
December 11, 2006. To avoid untimely payments, applicants should 
discuss arrangements (including bank closing schedules) with their 
banker several days before they plan to make the wire transfer, and 
allow sufficient time for the transfer to be initiated and completed 
before the deadline.
    84. At least one hour before placing the order for the wire 
transfer (but on the same business day), applicants must send by 
facsimile a completed FCC Form 159 (Revised 2/03) to Mellon Bank at 
(412) 209-6045. On the cover sheet of the facsimile, write Wire 
Transfer--Auction Payment for Auction No. 68. In order to meet the 
Commission's upfront payment deadline, an applicant's payment must be 
credited to the Commission's account before the deadline. Applicants 
are responsible for obtaining confirmation from their financial 
institution that Mellon Bank has timely received their upfront payment 
and deposited it in the proper account.
    85. Please note that: (1) All payments must be made in U.S. 
dollars; (b) all payments must be made by wire transfer; (3) upfront 
payments for Auction No. 68 go to a lockbox number different from the 
lockboxes used in previous FCC auctions, and different from the lockbox 
number to be used for post-auction payments, and (4) failure to deliver 
the upfront payment by the specified deadline on December 11, 2006, 
will result in dismissal of the application and disqualification from 
participation in the auction.
ii. FCC Form 159
    86. A completed FCC Remittance Advice Form (FCC Form 159, Revised 
2/03) must be sent by facsimile to Mellon Bank to accompany each 
upfront payment. Proper completion of FCC

[[Page 65107]]

Form 159 (Revised 2/03) is critical to ensuring correct crediting of 
upfront payments. Detailed instructions for completion of FCC Form 159 
are included in Attachment C to the Auction No. 68 Procedures Public 
Notice. An electronic pre-filled version of the FCC Form 159 is 
available after submitting the FCC Form 175. Payors using a pre-filled 
FCC Form 159 are responsible for ensuring that all of the information 
on the form, including payment amounts, is accurate. The FCC Form 159 
can be completed electronically, but must be filed with Mellon Bank via 
facsimile.
iii. Upfront Payments and Bidding Eligibility
    87. In the Part 1 Order, 62 FR 13540, March 21, 1997, the 
Commission delegated to the Bureaus the authority and discretion to 
determine appropriate upfront payment(s) for each auction. In addition, 
in the Part 1 Fifth Report and Order, 65 FR 52323, August 29, 2000, the 
Commission ordered that applicants that are former defaulters be 
required to pay upfront payments 50 percent greater than non-former 
defaulters. For purposes of this calculation, the applicant includes 
the applicant itself, its affiliates, its controlling interests, and 
affiliates of its controlling interests, as defined by 47 CFR 1.2110.
    88. In the Auction No. 68 Comment Public Notice, the Bureaus 
proposed that the amount of the upfront payment would determine a 
bidder's initial bidding eligibility, the maximum number of bidding 
units on which a bidder may place bids. In order to bid on a 
construction permit, otherwise qualified bidders that selected that 
construction permit on FCC Form 175 must have a current eligibility 
level that meets or exceeds the number of bidding units assigned to 
that construction permit. At a minimum, therefore, an applicant's total 
upfront payment must be enough to establish eligibility to bid on at 
least one of the construction permits selected on its FCC Form 175, or 
else the applicant will not be eligible to participate in the auction. 
An applicant does not have to make an upfront payment to cover all 
construction permits the applicant selected on its FCC Form 175, but 
rather to cover the maximum number of bidding units that are associated 
with construction permits on which the bidder wishes to place bids and 
hold provisionally winning bids at any given time. Provisionally 
winning bids are bids that would become final winning bids if the 
auction were to close after the given round.
    89. In the Auction No. 68 Comment Public Notice, the Bureaus 
proposed upfront payments for each construction permit taking into 
account various factors related to the efficiency of the auction 
process and the potential value of similar spectrum and sought comment 
on this proposal. The specific upfront payments and bidding units for 
each construction permit are set forth in Attachment A of the Auction 
No. 68 Procedures Public Notice.
    90. In calculating its upfront payment amount, an applicant should 
determine the maximum number of bidding units on which it may wish to 
be active (bid on or hold provisionally winning bids on) in any single 
round, and submit an upfront payment amount covering that number of 
bidding units. In order to make this calculation, an applicant should 
add together the upfront payments for all construction permits on which 
it seeks to be active in any given round. Applicants should check their 
calculations carefully, because it is not possible to increase a 
bidder's eligibility after the upfront payment deadline.
    91. Former defaulters should calculate their upfront payment for 
all construction permits by multiplying the number of bidding units on 
which they wish to be active by 1.5. In order to calculate the number 
of bidding units to assign to former defaulters, the Commission will 
divide the upfront payment received by 1.5 and round the result up to 
the nearest bidding unit. If a former defaulter fails to submit a 
sufficient upfront payment to establish eligibility to bid on at least 
one of the construction permits for which the applicant applied on its 
FCC Form 175, the applicant will not be eligible to participate in the 
auction.
iv. Applicant's Wire Transfer Information for Purposes of Refunds of 
Upfront Payments
    92. To ensure that refunds of upfront payments are processed in an 
expeditious manner, the Commission is requesting that all pertinent 
information be supplied to the FCC. Applicants can provide the 
information electronically during the initial application filing window 
after the application has been submitted. (Applicants are reminded that 
information submitted as part of an FCC Form 175 will be available to 
the public; for that reason, wire transfer information should not be 
included in an FCC Form 175.) Wire Transfer Instructions can also be 
manually sent by facsimile to the FCC, Financial Operations Center, 
Auctions Accounting Group, ATTN: Gail Glasser, at (202) 418-2643. All 
refunds will be returned to the payer of record as identified on the 
FCC Form 159 unless the payer submits written authorization instructing 
otherwise. Applicants should also note that implementation of the Debt 
Collection Improvement Act of 1996 requires the FCC to obtain a 
Taxpayer Identification Number (TIN) before it can disburse refunds.

E. Auction Registration

    93. Approximately ten days before the auction, the FCC will issue a 
public notice announcing all qualified bidders for the auction. 
Qualified bidders are those applicants whose FCC Form 175 applications 
have been accepted for filing and have timely submitted upfront 
payments sufficient to make them eligible to bid on at least one of the 
construction permits for which they applied.
    94. All qualified bidders are automatically registered for the 
auction. Registration materials will be distributed prior to the 
auction by overnight mail. The mailing will be sent only to the contact 
person at the contact address listed in the FCC Form 175 and will 
include the SecurID[reg] cards that will be required to place bids, the 
Integrated Spectrum Auction System (ISAS) Bidder's Guide, and the 
Auction Bidder Line phone number.
    95. Qualified bidders that do not receive this registration mailing 
will not be able to submit bids. Therefore, any qualified bidder that 
has not received this mailing by noon on Thursday, January 4, 2007, 
should call (717) 338-2868. Receipt of this registration mailing is 
critical to participating in the auction, and each applicant is 
responsible for ensuring it has received all of the registration 
material.
    96. In the event that SecurID[reg] cards are lost or damaged, only 
a person who has been designated as an authorized bidder, the contact 
person, or the certifying official on the applicant's short-form 
application may request replacement registration material. Qualified 
bidders requiring the replacement of these items must call Technical 
Support.

F. Remote Electronic Bidding

    97. The Commission will conduct this auction over the Internet, and 
telephonic bidding will be available as well. Qualified bidders are 
permitted to bid electronically and telephonically. Each applicant 
should indicate its bidding preference--electronic or telephonic--on 
the FCC Form 175. In either case, each authorized bidder must have its 
own SecurID[reg] card, which the FCC will provide at no charge. Each 
applicant with one authorized bidder

[[Page 65108]]

will be issued two SecurID[reg] cards, while applicants with two or 
three authorized bidders will be issued three cards. For security 
purposes, the SecurID[reg] cards, the telephonic bidding telephone 
number, and the Integrated Spectrum Auction System (ISAS) Bidder's 
Guide are only mailed to the contact person at the contact address 
listed on the FCC Form 175. Please note that each SecurID[reg] card is 
tailored to a specific auction; therefore, SecurID[reg] cards issued 
for other auctions or obtained from a source other than the FCC will 
not work for Auction No. 68.
    98. Please note that the SecurID[reg] cards can be recycled, and 
the Bureaus encourage bidders to return the cards to the FCC. The 
Bureaus will provide pre-addressed envelopes that bidders may use to 
return the cards once the auction is closed.

G. Mock Auction--January 8, 2007

    99. All qualified bidders will be eligible to participate in a mock 
auction on Monday, January 8, 2007. The mock auction will enable 
applicants to become familiar with the FCC Auction System prior to the 
auction. Participation by all bidders is strongly recommended. Details 
will be announced by public notice.

IV. Auction Event

    100. The first round of bidding for Auction No. 68 will begin on 
Wednesday, January 10, 2007. The initial bidding schedule will be 
announced in a public notice listing the qualified bidders, which is to 
be released approximately 10 days before the start of the auction.

A. Auction Structure

i. Simultaneous Multiple Round Auction
    101. In the Auction No. 68 Comment Public Notice, the Bureaus 
proposed to auction all construction permits in Auction No. 68 in a 
single auction using the Commission's standard simultaneous multiple-
round (SMR) auction format. This type of auction offers every 
construction permit for bid at the same time and consists of successive 
bidding rounds in which eligible bidders may place bids on individual 
construction permits. A bidder may bid on, and potentially win, any 
number of construction permits. Typically, bidding remains open on all 
construction permits until bidding stops on every construction permit, 
unless a modified stopping rule is invoked.
    102. A commenter suggests that rather than keep bidding open until 
bidding stops on all permits, the Bureaus close bidding on each permit 
once there has been no activity on that permit for ten rounds. The 
commenter insists that keeping all permits open increases the 
administrative costs for the new entrant bidder because that bidder is 
forced to continue monitoring each round of the bidding despite the 
fact that their allotment may not have had any activity for ten or more 
rounds.
    103. Through its experience with auctions, the Commission has found 
that the simultaneous multiple round bidding design best advances the 
goals of competitive bidding. This auction design generates the most 
information about relative prices during the course of the auction and 
provides bidders with the greatest flexibility to pursue back-up 
strategies. Adoption of the commenter's proposal would reduce the 
flexibility of bidders to implement backup strategies in response to 
price information developed as the auction continues. Furthermore, in 
addition to the informational and bidding flexibility advantages, 
simultaneous multiple round auctions engender vigorous competition and 
are more likely to place construction permits in the hands of the 
bidder with the highest valuation. The Bureaus therefore conclude that 
it is operationally feasible and appropriate to auction the FM 
broadcast stations construction permits through a simultaneous multiple 
round auction, and the Bureaus decline to adopt this commenter's 
proposal. Unless otherwise announced, bids will be accepted on all 
construction permits in each round of the auction.
ii. Eligibility and Activity Rules
    104. In the Auction No. 68 Comment Public Notice, the Bureaus 
proposed that the amount of the upfront payment submitted by a bidder 
would determine the initial (maximum) eligibility (as measured in 
bidding units) for each bidder. The Bureaus received no comments 
concerning the eligibility rule.
    105. Accordingly, the Bureaus adopt the proposed use of upfront 
payments to determine initial (maximum) eligibility (as measured in 
bidding units) for Auction No. 68. The amount of the upfront payment 
submitted by a bidder determines initial bidding eligibility, the 
maximum number of bidding units on which a bidder may be active. As 
noted earlier, each construction permit is assigned a specific number 
of bidding units equal to the upfront payment listed in Attachment A of 
the Auction No. 68 Procedures Public Notice on a bidding unit per 
dollar basis. Bidding units for a given construction permit do not 
change as prices rise during the auction. A bidder's upfront payment is 
not attributed to specific construction permits. Rather, a bidder may 
place bids on any of the construction permits selected on its FCC Form 
175 as long as the total number of bidding units associated with those 
construction permits does not exceed its current eligibility. 
Eligibility cannot be increased during the auction; it can only remain 
the same or decrease. Thus, in calculating its upfront payment amount, 
an applicant must determine the maximum number of bidding units it may 
wish to bid on or hold provisionally winning bids on in any single 
round, and submit an upfront payment amount covering that total number 
of bidding units. The total upfront payment does not affect the total 
dollar amount a bidder may bid on any given construction permit.
    106. In order to ensure that an auction closes within a reasonable 
period of time, an activity rule requires bidders to bid actively 
throughout the auction, rather than wait until late in the auction 
before participating. Bidders are required to be active on a specific 
percentage of their current bidding eligibility during each round of 
the auction.
    107. In the Auction No. 68 Comment Public Notice, the Bureaus 
proposed to conduct this auction in one stage and employ a 100 percent 
activity rule. The Bureaus received no comments on their proposal for a 
single stage auction. Because the Bureaus expect their proposals in 
this regard to maintain an appropriate pace of bidding in this auction, 
the Bureaus adopt their proposal for one stage with the following 
activity requirement: a bidder is required to be active on 100 percent 
of its current eligibility during each round of the auction.
    108. A bidder's activity level in a round is the sum of the bidding 
units associated with construction permits on which the bidder is 
active. A bidder is considered active on a construction permit in the 
current round if it is either the provisionally winning bidder at the 
end of the previous bidding round or if it submits a bid in the current 
round. Failure to maintain the requisite activity level will result in 
the use of an activity rule waiver, if any remain, or a reduction in 
the bidder's eligibility, possibly curtailing or eliminating the 
bidder's ability to place bids in the auction.
iii. Activity Rule Waivers
    109. In the Auction No. 68 Comment Public Notice, the Bureaus 
proposed that each bidder in the auction be provided with three 
activity rule

[[Page 65109]]

waivers. The Bureaus received no comments on this issue. Therefore, the 
Bureaus adopt their proposal that each bidder be provided three 
activity rule waivers. The Bureaus are satisfied that providing three 
waivers over the course of the auction will give bidders a sufficient 
number of waivers and flexibility, while also safeguarding the 
integrity of the auction.
    110. Bidders may use an activity rule waiver in any round during 
the course of the auction. Use of an activity rule waiver preserves the 
bidder's current bidding eligibility despite the bidder's activity in 
the current round being below the required minimum activity level. An 
activity rule waiver applies to an entire round of bidding and not to a 
particular construction permit. Activity rule waivers can be either 
applied proactively by the bidder (a proactive waiver) or applied 
automatically by the FCC Auction System (an automatic waiver) and are 
principally a mechanism for auction participants to avoid the loss of 
bidding eligibility in the event that exigent circumstances prevent 
them from placing a bid in a particular round.
    111. The FCC Auction System assumes that bidders with insufficient 
activity would prefer to apply an activity rule waiver (if available) 
rather than lose bidding eligibility. Therefore, the system will 
automatically apply a waiver at the end of any bidding round where a 
bidder's activity level is below the minimum required unless: (1) There 
are no activity rule waivers available; or (2) the bidder overrides the 
automatic application of a waiver by reducing eligibility. If a bidder 
has no waivers remaining and does not satisfy the activity requirement, 
the FCC Auction System will permanently reduce the bidder's 
eligibility, possibly curtailing or eliminating the bidder's ability to 
place additional bids in the auction.
    112. A bidder with insufficient activity that wants to reduce its 
bidding eligibility rather than use an activity rule waiver must 
affirmatively override the automatic waiver mechanism during the 
bidding round by using the reduce eligibility function in the FCC 
Auction System. In this case, the bidder's eligibility is permanently 
reduced to bring the bidder into compliance with the activity rules. 
Once eligibility has been reduced, a bidder will not be permitted to 
regain its lost bidding eligibility even if the round has not yet 
closed.
    113. Finally, a bidder may apply an activity rule waiver 
proactively as a means to keep the auction open without placing a bid. 
If a bidder proactively applies an activity waiver (using the Apply 
Waiver function in the FCC Auction System) during a bidding round in 
which no bids are submitted, the auction will remain open and the 
bidder's eligibility will be preserved. However, an automatic waiver 
applied by the FCC Auction System in a round in which there are no new 
bids will not keep the auction open.
    114. A bidder cannot submit a proactive waiver after submitting a 
bid in a round, and submitting a proactive waiver will preclude a 
bidder from placing any bids in that round. Applying a waiver is 
irreversible; once a proactive waiver is submitted that waiver cannot 
be unsubmitted, even if the round has not yet closed.
iv. Auction Stopping Rules
    115. For Auction No. 68, the Bureaus proposed to employ a 
simultaneous stopping rule approach. The Bureaus also sought comment on 
a modified version of the simultaneous stopping rule (modified stopping 
rule). The modified stopping rule would close the auction for all 
construction permits after the first round in which no bidder applies a 
waiver or submits any new bids on any construction permit on which it 
is not the provisionally winning bidder. Thus, absent any other bidding 
activity, a bidder placing a new bid on a construction permit for which 
it is the provisionally winning bidder would not keep the auction open 
under this modified stopping rule.
    116. The Bureaus further proposed retaining the discretion to keep 
the auction open even if no new bids or proactive waivers are submitted 
in a round. In this event, the effect will be the same as if a bidder 
had applied a waiver. Thus, the activity rule will apply as usual, and 
a bidder with insufficient activity will either use an activity rule 
waiver (if it has any left) or lose bidding eligibility.
    117. In addition, the Bureaus proposed to reserve the right to 
declare that the auction will end after a specified number of 
additional rounds (special stopping rule). If the Bureaus invoke this 
special stopping rule, they will accept bids in the specified final 
round(s) and the auction will close.
    118. The Bureaus proposed to exercise these options only in 
circumstances such as where the auction is proceeding very slowly, 
where there is minimal overall bidding activity or where it appears 
likely that the auction will not close within a reasonable period of 
time. The Bureaus noted that before exercising these options, the 
Bureaus are likely to attempt to increase the pace of the auction by, 
for example, increasing the number of bidding rounds per day, and/or 
increasing the amount of the minimum bid increments for the limited 
number of construction permits where there is still a high level of 
bidding activity.
    119. The Bureaus received no comments on the proposals about 
stopping rules. The Bureaus find that the proposed stopping rules are 
appropriate for Auction No. 68, because of their experience in prior 
auctions demonstrates that these stopping rules balance interests of 
administrative efficiency and maximum bidder participation. Therefore 
the Bureaus adopt the proposals made in the Auction No. 68 Comment 
Public Notice. Auction No. 68 will begin under the simultaneous 
stopping rule approach, and the Bureaus will retain the discretion to 
employ the other versions of the stopping rule. Moreover, the Bureaus 
will retain the discretion to use the modified stopping rule with or 
without prior announcement during the auction.
v. Auction Delay, Suspension, or Cancellation
    120. In the Auction No. 68 Comment Public Notice, the Bureaus 
proposed that, by public notice or by announcement during the auction, 
the Bureaus may delay, suspend, or cancel the auction in the event of 
natural disaster, technical obstacle, evidence of an auction security 
breach, unlawful bidding activity, administrative or weather necessity, 
or for any other reason that affects the fair conduct of competitive 
bidding. The Bureaus received no comment on this issue.
    121. Because the proposed approach for notification of delay during 
an auction has proven effective in resolving exigent circumstances in 
previous auctions, the Bureaus adopt their proposals regarding auction 
delay, suspension, or cancellation. By public notice or by announcement 
during the auction, the Bureaus may delay, suspend, or cancel the 
auction in the event of natural disaster, technical obstacle, evidence 
of an auction security breach, unlawful bidding activity, 
administrative or weather necessity, or for any other reason that 
affects the fair and competitive conduct of competitive bidding. In 
such cases, the Bureaus, in their sole discretion, may elect to resume 
the auction starting from the beginning of the current round, resume 
the auction starting from some previous round, or cancel the auction in 
its entirety. Network interruption may cause the Bureaus to delay or 
suspend the auction. The Bureaus emphasize that exercise of this 
authority is solely

[[Page 65110]]

within the discretion of the Bureaus, and its use is not intended to be 
a substitute for situations in which bidders may wish to apply their 
activity rule waivers.

B. Bidding Procedures

i. Round Structure
    122. The initial schedule of bidding rounds will be announced in 
the public notice listing the qualified bidders, which is released 
approximately 10 days before the start of the auction. Each bidding 
round is followed by the release of round results. Multiple bidding 
rounds may be conducted in a given day. Details regarding round results 
formats and locations will also be included in the qualified bidders 
public notice.
    123. The Bureaus have the discretion to change the bidding schedule 
in order to foster an auction pace that reasonably balances speed with 
the bidders' need to study round results and adjust their bidding 
strategies. The Bureaus may increase or decrease the amount of time for 
the bidding rounds and review periods, or the number of rounds per day, 
depending upon the bidding activity level and other factors.
ii. Reserve Price and Minimum Opening Bids
    124. In the Auction No. 68 Comment Public Notice, pursuant to 47 
U.S.C. 309(j) and authority delegated by the Commission, the Bureaus 
proposed to establish minimum opening bids for Auction No. 68, 
reasoning that a minimum opening bid, successfully used in other 
broadcast auctions, including Auction Nos. 25, 27, and 54 (Closed 
Broadcast); Auction No. 32 (AM Broadcast); and Auction Nos. 37 and 62 
(FM Broadcast), is a valuable tool, effectively regulating the pace of 
the auction. Specifically, a minimum opening bid was proposed for each 
construction permit listed in Attachment A of the Auction No. 68 
Procedures Public Notice. The minimum opening bid was determined by 
taking into account various factors relating to the efficiency of the 
auction and the potential value of the spectrum, including the type of 
service and class of facility offered, market size, population covered 
by the proposed FM broadcast facility, industry cash flow data, and 
recent broadcast transactions. Based on experience in using minimum 
opening bids in other auctions, the Bureaus believe that minimum 
opening bids speed the course of the auction and ensure that valuable 
assets are not sold for nominal prices, without unduly interfering with 
the efficient awarding of construction permits.
    125. In the alternative, the Bureaus sought comment on whether, 
consistent with Section 309(j), the public interest would be served by 
having no minimum opening bid or reserve price. A commenter objects to 
the minimum opening bid amounts proposed in the Auction No. 68 Comment 
Public Notice and requests that the minimum opening bids be reduced to 
ten percent of the proposed amounts or a minimum of $500. The 
commenter's objections, however, proceed from the speculation that the 
permits being offered in Auction No. 68 were unsold in Auction Nos. 37 
and 62 because the public found the minimum opening bids to be much too 
high. On the contrary, analysis of the Auction Nos. 37 and 62 bidding 
reveals that, in each case, multiple bidders placed bids on these nine 
permits that exceeded the minimum opening bid amount in that auction, 
and in most cases bids were substantially higher than the minimum 
opening bid. Moreover, the bidding history for these permits suggests 
that the minimum opening bid amounts continued to serve the intended 
purpose in those prior auctions, thereby promoting efficiency in the 
assignment of FM construction permits. The Bureaus thus reject the 
commenter's arguments that the specified minimum opening bid amounts 
are too high.
    126. The commenter also states that the Bureaus must adopt 
procedures on how to handle vacant allotments that receive no auction 
bids or when there is a payment default. The commenter suggests that, 
if a permit remains unsold at the end of the auction, that allotment 
should be deleted. However, the commenter mistakenly assumes that most 
of the nine permits being offered in Auction No. 68 received no bids in 
Auction Nos. 37 and/or 62. To the contrary, all of these permits 
received multiple bids in prior FM auctions. The Bureaus find no basis 
to depart from the Commission's established procedures for the 
assignment of construction permits.
    127. The Bureaus concluded that the proposed minimum opening bid 
amounts are appropriate, and the Bureaus adopted the previously-
proposed amounts. The minimum opening bid amounts the Bureaus adopt for 
Auction No. 68 are reducible at the discretion of the Bureaus. The 
Bureaus emphasize, however, that such discretion will be exercised, if 
at all, sparingly and early in the auction, i.e., before bidders lose 
all waivers and begin to lose substantial eligibility. During the 
course of the auction, the Bureaus will not entertain requests to 
reduce the minimum opening bid amount on specific construction permits.
    128. The specific minimum opening bid amounts for each construction 
permit available in Auction No. 68 are set forth in Attachment A of the 
Auction No. 68 Procedures Public Notice.
iii. Bid Amounts
    129. In the Auction No. 68 Comment Public Notice, the Bureaus 
proposed to use a minimum acceptable bid increment of 10 percent. This 
means that the minimum acceptable bid amount for a construction permit 
will be approximately 10 percent greater than the provisionally winning 
bid amount for the construction permit. The minimum acceptable bid 
amount will be calculated by multiplying the provisionally winning bid 
amount times one plus the minimum acceptable bid percentage--i.e. 
(provisionally winning bid amount) * (1.10). The Bureaus will round the 
result using our standard rounding procedures. The Bureaus further 
proposed to retain the discretion to change the minimum acceptable bid 
amounts and bid increments amounts if the Bureaus determine that 
circumstances so dictate. The commenter asserts that the proposed bid 
increments are too low. The Bureaus rejected the commenter's suggestion 
that bid increments be increased to two, three, four, and five times 
the current bid. Experience in the previous FM auctions assured the 
Bureaus that the bid increments in use are sufficient to ensure active 
bidding. Thus, the Bureaus will begin the auction with a minimum 
acceptable bid percentage of 10 percent.
    130. If the bidder has sufficient eligibility to place a bid on the 
particular construction permit, each eligible bidder in each round will 
be able to place a bid on a particular construction permit for which it 
applied in any of nine different amounts. The FCC Auction System will 
list the nine bid amounts for each construction permit. The nine bid 
amounts for each construction permit consist of the minimum acceptable 
bid amount calculated using a bid increment percentage. There is one 
exception. In the event of duplicate bid amounts due to rounding, the 
FCC Auction System will omit the duplicates and will list fewer than 
nine acceptable bid amounts for the construction permit.
    131. The calculation of the minimum acceptable bid amounts for each 
construction permit for the next round is made at the end of each 
round. The acceptable bid amounts in addition to

[[Page 65111]]

the minimum acceptable bid amount for each construction permit are 
calculated using a bid increment percentage. The first additional 
acceptable bid amount equals the minimum acceptable bid amount times 
one plus the bid increment percentage, rounded--e.g., if the increment 
percentage is 10 percent, the calculation is (minimum acceptable bid 
amount) * (1 + 0.10), rounded, or (minimum acceptable bid amount) * 
1.10, rounded; the second additional acceptable bid amount equals the 
minimum acceptable bid amount times one plus two times the bid 
increment percentage, rounded, or (minimum acceptable bid amount) * 
1.20, rounded; the third additional acceptable bid amount equals the 
minimum acceptable bid amount times one plus three times the bid 
increment percentage, rounded, or (minimum acceptable bid amount) * 
1.30, rounded; etc.
    132. The Bureaus retain the discretion to change the minimum 
acceptable bid amounts, the minimum acceptable bid percentage, and the 
bid increment percentage if they determine that circumstances so 
dictate. The Bureaus will do so by announcement in the FCC Auction 
System during the auction. The Bureaus may also use their discretion to 
adjust the minimum bid increment amount without prior notice if 
circumstances warrant.
iv. Provisionally Winning Bids
    133. At the end of each bidding round, a provisionally winning bid 
will be determined based on the highest bid amount received for each 
construction permit. A provisionally winning bid will remain the 
provisionally winning bid until there is a higher bid on the same 
construction permit at the close of a subsequent round. Provisionally 
winning bids at the end of the auction become the winning bids. Bidders 
are reminded that provisionally winning bids count toward activity for 
purposes of the activity rule.
    134. In the Auction No. 68 Comment Public Notice, the Bureaus 
proposed to use a random number generator to select a single 
provisionally winning bid in the event of identical high bid amounts 
being submitted on a construction permit in a given round (i.e., tied 
bids). No comments were received on this proposal. Therefore, the 
Bureaus adopt their proposal.
    135. A pseudo-random number generator based on the L'Ecuyer 
algorithms will be used to assign a random number to each bid. The tied 
bid with the highest random number wins the tiebreaker, and becomes the 
provisionally winning bid. The remaining eligible bidders, as well as 
the provisionally winning bidder, can submit higher bids in subsequent 
rounds. However, if the auction were to end with no other bids being 
placed, the winning bidder would be the one that placed the selected 
provisionally winning bid.
    136. During a round, a bidder may submit bids for as many 
construction permits as it wishes (providing that it is eligible to 
bid), remove bids placed in the current bidding round, or permanently 
reduce eligibility. Bidders also have the option of submitting and 
removing multiple bids during a round. If a bidder submits multiple 
bids for a single construction permit in the same round, the system 
takes the last bid entered as that bidder's bid for the round. Bidders 
should note that the bidding units associated with construction permits 
for which the bidder has removed its bid do not count towards the 
bidder's current activity.
    137. All bidding will take place remotely either through the FCC 
Auction System or by telephonic bidding. There will be no on-site 
bidding during Auction No. 68. Please note that telephonic bid 
assistants are required to use a script when entering bids placed by 
telephone. Telephonic bidders are therefore reminded to allow 
sufficient time to bid by placing their calls well in advance of the 
close of a round. Normally, five to ten minutes are necessary to 
complete a telephonic bid submission.
    138. A bidder's ability to bid on specific construction permits is 
determined by two factors: (1) The construction permits selected on the 
bidder's FCC Form 175 and (2) the bidder's eligibility. The bid 
submission screens will allow bidders to submit bids on only those 
construction permits the bidder selected on its FCC Form 175.
    139. In order to access the bidding function of the FCC Auction 
System, bidders must be logged in during the bidding round using the 
passcode generated by the SecurID[reg] card and a personal 
identification number (PIN) created by the bidder. Bidders are strongly 
encouraged to print a round summary for each round after they have 
completed all of their activity for that round.
    140. In each round, eligible bidders will be able to place bids on 
a given construction permit in any of nine different amounts, if the 
bidder has sufficient eligibility to place a bid on the particular 
construction permit. For each construction permit, the FCC Auction 
System will list the nine acceptable bid amounts in a drop-down box. 
Bidders use the drop-down box to select from among the acceptable bid 
amounts. The FCC Auction System also includes an upload function that 
allows bidders to upload text files containing bid information.
    141. Until a bid has been placed on a construction permit, the 
minimum acceptable bid amount for that construction permit will be 
equal to its minimum opening bid amount. Once there are bids on a 
construction permit, minimum acceptable bids for a construction permit 
for the following round will be determined.
v. Bid Removal and Bid Withdrawal
    142. In the Auction No. 68 Comment Public Notice, the Bureaus 
proposed bid removal procedures. The Bureaus received no comments on 
the issue of bid removals. Therefore, the Bureaus adopted their 
proposals concerning bid removals for Auction No. 68. Before the close 
of a bidding round, a bidder has the option of removing any bids placed 
in that round. By using the remove bids function in the FCC Auction 
System, a bidder may effectively unsubmit any bid placed within that 
round. A bidder removing a bid placed in the same round is not subject 
to withdrawal payments. Removing a bid will affect a bidder's activity 
for the round in which it is removed, i.e., a bid that is removed does 
not count toward bidding activity. Once a round closes, a bidder may no 
longer remove a bid.
    143. With respect to bid withdrawals, the Bureaus proposed that 
bidders not be permitted to withdraw bids in any round. Two commenters 
argue that the Commission needs to eliminate a loophole in the 
Commission's withdrawal payment rule provisions. The commenters suggest 
that the Commission's rules governing bid withdrawal payments create an 
incentive for bidders to withdraw because of the time that may elapse 
before a withdrawing bidder's final withdrawal payment liability is 
determined. The commenters describe four instances of sequential 
withdrawals by the same bidders in FM Auction Nos. 37 and 62, resulting 
in delayed service to the public. The commenters argue that a 
withdrawing bidder should be barred from bidding on the same FM 
allotments in future auctions, such as Auction No. 68. Further, these 
commenters ask that the Commission clarify that a withdrawn bid is a 
failure to make payment on a provisionally winning bid and this: (1) Is 
a default on a payment for a Commission license within the meaning of 
the current defaulter certification specified at 47 CFR 
1.2105(a)(1)(x), (2) must be disclosed on a short-form application

[[Page 65112]]

for subsequent auctions, and (3) bars participation by that withdrawing 
bidder in subsequent auctions, unless good cause is demonstrated.
    144. In contrast, another commenter opposes the Commission's 
proposal not to permit bid withdrawals in Auction No. 68, specifically 
characterizing as idle speculation the assertion by the two commenters 
that withdrawals by four bidders in FM Auction Nos. 37 and 62 delayed 
the submission of at least $1,801,000 to the U.S. Treasury. That 
commenter claims that withdrawals facilitate potential deals with 
auction non-participants to trade licenses and make it easier for 
financially constrained small bidders to engage in parking of bids on 
construction permits in which they are not interested in order to avoid 
bidding up the prices of the construction permits in which they are 
interested. In reply comments that commenter asserts that there were no 
bona fide applicants who were harmed by the withdrawals in the two 
earlier auctions. The Bureaus reject that commenter's arguments and 
note that our auction procedures, including withdrawal and activity 
rules, are designed to encourage participation by all interested 
parties and straightforward bidding by auction participants, so that 
the auction mechanism will assign the permits directly to the parties 
that value them most highly.
    145. In addition, the commenter argues against the suggestion of 
the two commenters, that bidders that withdrew bids in Auction Nos. 37 
or 62 not be permitted to participate in Auction No. 68, and 
alternatively, suggests that the FCC privately offer those bidders the 
opportunity to reinstate their withdrawn bids. The commenter also 
challenges the Commission's withdrawal payment procedures from the 
previous auctions. In reply comments, the commenter proposes several 
revisions to the Commission's withdrawal payment rules, including a new 
flat 10 percent final withdrawal payment based on the amount of the 
withdrawn bid, to replace the current interim and final withdrawal 
payments based, in part, on the winning bid for the particular 
construction permit or license in the same or a subsequent auction.
    146. Generally, these proposals all seek to change various aspects 
of the Commission's competitive bidding rules, which would require a 
rulemaking and is therefore outside of the scope of the issues upon 
which the Bureaus have invited comment. With respect to the commenter's 
suggestion to impose an additional bid withdrawal payment, the Bureaus 
note that the Commission's rules on withdrawal payments were recently 
revised to allow for such additional payments, and the Bureaus are 
making provision for such payments in this auction. Accordingly, the 
Bureaus adopt their proposal concerning bid withdrawals and will not 
permit bidders to withdraw bids in any round during the auction. 
Moreover, because there will be no bid withdrawals in Auction No. 68, 
the concerns raised by the other two commenters regarding sequential 
withdrawals will not arise in this auction. The Bureaus also decide 
that it is not necessary to take the extra precaution of barring 
bidders who withdrew high bids in the earlier FM auctions from 
participating in Auction No. 68.
    147. Bidders are cautioned to select bid amounts carefully because 
no bid withdrawals will be allowed in Auction No. 68, even if a bid was 
mistakenly or erroneously made.
vi. Round Results
    148. Bids placed during a round will not be made public until the 
conclusion of that round. After a round closes, the Bureaus will 
compile reports of all bids placed, current provisionally winning bids, 
new minimum acceptable bid amounts, and bidder eligibility status 
(bidding eligibility and activity rule waivers), and post the reports 
for public access. Reports reflecting bidders' identities for Auction 
No. 68 will be available before and during the auction. Thus, bidders 
will know in advance of this auction the identities of the bidders 
against which they are bidding.
vii. Auction Announcements
    149. The Commission will use auction announcements to announce 
items such as schedule changes. All auction announcements will be 
available by clicking a link in the FCC Auction System.

V. Post-Auction Procedures

A. Down Payments

    150. After bidding has ended, the Commission will issue a public 
notice declaring the auction closed and identifying winning bidders, 
down payments and final payments due.
    151. Within ten business days after release of the auction closing 
notice, each winning bidder must submit sufficient funds (in addition 
to its upfront payment) to bring its total amount of money on deposit 
with the Commission for Auction No. 68 to 20 percent of the net amount 
of its winning bids (gross bids less any applicable new entrant bidding 
credits).

B. Final Payments

    152. Recognizing the public benefit of maintaining a consistent set 
of auction procedures across the various auctionable services, in the 
CSEA/Part 1 Report and Order, 71 FR 6214, February 7, 2006, the 
Commission recently conformed the broadcast final payment procedures to 
the analogous Part 1 requirements. Specifically, the Part 1 rules 
provide that, unless otherwise specified by public notice, auction 
winners are required to pay the balance of their winning bids in a lump 
sum within ten business days following the release of a public notice 
establishing the payment deadline. In recent spectrum auctions, the 
Commission has required each winning bidder to submit the balance of 
the net amount of its winning bid(s) within 10 business days after the 
deadline for submitting down payments. Consistent with this approach, 
for Auction No. 68, each winning bidder will be required to submit the 
balance of the net amount of its winning bids within 10 business days 
after the deadline for submitting down payments.

C. Long-Form Application

    153. A commenter remarks that, because final payment is now due 
within approximately 20 days after release of the auction closing 
public notice announcing winning auction bidders, the time period for 
filing a long-form application (FCC Form 301) should be extended from 
30 to 90 days from release of that public notice. However, the 30-day 
period for filing Form 301 is dictated by the Commission's Rules, which 
may not be changed outside of a formal rulemaking proceeding. The 
Bureaus cannot implement the commenter's proposed change of this filing 
deadline. Accordingly, within thirty days after the release of the 
auction closing notice, winning bidders must electronically submit a 
properly completed FCC Form 301, Application for FM Construction 
Permit, and required exhibits for each construction permit won through 
Auction No. 68. Winning bidders claiming new entrant status must 
include an exhibit demonstrating their eligibility for the bidding 
credit. Further filing instructions will be provided to auction winners 
at the close of the auction.

D. Default and Disqualification

    154. Any winning bidder that defaults or is disqualified after the 
close of the auction (i.e., fails to remit the required down payment 
within the prescribed period of time, fails to submit a timely

[[Page 65113]]

long-form application, fails to make full payment, or is otherwise 
disqualified) will be subject to the payments described in 47 CFR 
1.2104(g)(2). The payments include both a deficiency payment, equal to 
the difference between the amount of the bidder's bid and the amount of 
the winning bid the next time a construction permit covering the same 
spectrum is won in an auction, plus an additional payment equal to a 
percentage of the defaulter's bid or of the subsequent winning bid, 
whichever is less. Pursuant to recent modifications to the rule 
governing default payments, the percentage of the applicable bid to be 
assessed as an additional payment for defaults in a particular auction 
is established in advance of the auction. Accordingly, in the Auction 
No. 68 Comment Public Notice, the Bureaus proposed to set the 
additional default payment for the auction of these FM broadcast 
construction permits at ten percent (10%) of the applicable bid. The 
Bureaus sought comment on their proposal. The two commenters support a 
10 percent additional payment for each auction in which a bid is 
withdrawn. In reply, another commenter contends that the two commenters 
misunderstand the default rules; instead the commenter seeks changes to 
the default payment rules. The proposed changes to default payment 
rules are outside of the scope of this proceeding. Based on the 
Bureaus' experience and the record before the Bureaus, the additional 
default payment for this auction of FM broadcast construction permits 
was set at ten percent (10%) of the applicable bid.
    155. Finally, the Bureaus note that in the event of a default, the 
Commission may re-auction the construction permit or offer it to the 
next highest bidder (in descending order) at its final bid amount. In 
addition, if a default or disqualification involves gross misconduct, 
misrepresentation, or bad faith by an applicant, the Commission may 
declare the applicant and its principals ineligible to bid in future 
auctions, and may take any other action that it deems necessary, 
including institution of proceedings to revoke any existing 
authorizations held by the applicant.

E. Refund of Remaining Upfront Payment Balance

    156. All applicants that submit upfront payments but after the 
close of the auction are not winning bidders for a construction permit 
in Auction No. 68 may be entitled to a refund of their remaining 
upfront payment balance after the conclusion of the auction. All 
refunds will be returned to the payer of record, as identified on the 
FCC Form 159, unless the payer submits written authorization 
instructing otherwise.
    157. Bidders that drop out of the auction completely may be 
eligible for a refund of their upfront payments before the close of the 
auction. Qualified bidders that have exhausted all of their activity 
rule waivers and have no remaining bidding eligibility may also be 
eligible for a refund of their upfront payment before the close of the 
auction. If an applicant has completed the refund instructions 
electronically, the refund will be sent automatically. If an applicant 
has not completed the refund instructions electronically, a written 
request must be submitted for the refund and include wire transfer 
instructions, Taxpayer Identification Number (TIN) and FCC Registration 
Number (FRN). Send refund requests to: Federal Communications 
Commission, Financial Operations Center, Auctions Accounting Group, 
Attn: Gail Glasser, 445 12th Street, SW., Room 1-C864, Washington, DC 
20554.
    158. Following the close of the auction, the Commission may refund 
upfront monies on deposit that exceed the required final payment and/or 
default payment amounts. Such refunds will be made to the payer of 
record as identified on the FCC Form 159, provided the necessary refund 
request and wire transfer instructions have been received.

    Federal Communications Commission.
Gary D. Michaels,
Deputy Chief, Auctions Spectrum and Access Division, WTB.
 [FR Doc. E6-18725 Filed 11-6-06; 8:45 am]
BILLING CODE 6712-01-P