[Federal Register Volume 75, Number 19 (Friday, January 29, 2010)]
[Rules and Regulations]
[Pages 4701-4703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1878]



[[Page 4701]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 10-18; FCC 10-4]


In the Matter of Procedural Amendments to Commission Part 1 
Competitive Bidding Rules

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission makes two procedural amendments to its 
competitive bidding rules. The Commission amends the rule specifying 
how to report potential violations of the prohibition on certain 
communications in order to reduce the risk that bidding-related 
information might be disseminated to auction applicants. The Commission 
also amends the rules specifying how quickly applicants must modify 
pending auction applications in order to enhance the usefulness of 
application information during the auction process and enable the 
Commission to respond promptly to changing circumstances if necessary.

DATES: Effective March 1, 2010.

FOR FURTHER INFORMATION CONTACT: Wireless Telecommunications Bureau, 
Auctions and Spectrum Access Division: Sayuri Rajapakse at (202) 418-
0660.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Part 1 
Procedural Amendments Order adopted January 6, 2010, and released on 
January 7, 2010. The complete text of the Part 1--Procedural Amendments 
Order is available for public inspection and copying from 8 a.m. to 
4:30 p.m. ET Monday through Thursday or from 8 a.m. to 11:30 a.m. ET on 
Fridays in the FCC Reference Information Center, 445 12th Street, SW., 
Room CY-A257, Washington, DC 20554. The Part 1--Procedural Amendments 
Order may be purchased from the Commission's duplicating contractor, 
Best Copy and Printing, Inc. (BCPI), 445 12th Street, SW., Room CY-
B402, Washington, DC 20554, telephone 202-488-5300, fax 202-488-5563, 
or you may contact BCPI at its Web site: http://www.BCPIWEB.com. When 
ordering documents from BCPI, please provide the appropriate FCC 
document number, for example, FCC 10-4. The Part 1--Procedural 
Amendments Order is also available on the Internet at the Commission's 
Web site: http://wireless.fcc.gov/auctions, or by using the search 
function for WT Docket No. 10-18 on the ECFS Web page at http://www.fcc.gov/cgb/ecfs/.

 Introduction

    1. The Commission makes two procedural amendments to its 
competitive bidding rules. First, the Commission amends the rule 
specifying how to report potential violations of 47 CFR 1.2105(c), 
which prohibits certain communications between auction applicants. The 
Commission provides that such reports shall be made as directed by 
public notice or, absent such direction, solely to the Auctions and 
Spectrum Access Division (Division) of the Wireless Telecommunications 
Bureau (Bureau) by the most expeditious means available. Currently, 
such reports are made both to the Division and to the Office of the 
Secretary of the Commission. This revised procedure will reduce the 
risk that bidding-related information might be disseminated to auction 
applicants, which would be contrary to the purpose of 47 CFR 1.2105(c). 
The Commission also amends the heading of 47 CFR 1.2105(c).
    2. Second, the Commission amends the rules specifying how quickly 
applicants must modify pending auction applications. The Commission 
provides that such modifications shall be made within five business 
days after the reportable event occurs, or no more than five business 
days after the applicant becomes aware of the need to make an amendment 
or modification, whichever is later. This revision will enhance the 
usefulness of application information during the auction process and 
enable the Commission to respond promptly to changing circumstances if 
necessary.

Reporting Potential Violations of Section 1.2105(c)

    3. Subject to specific exceptions, 47 CFR 1.2105(c) of the 
Commission's rules prohibits applicants from cooperating or 
collaborating with respect to, discussing with certain other 
applicants, or disclosing to such other applicants, the substance of 
any applicant's bids or bidding strategies, or discussing or 
negotiating settlement agreements. The rule's prohibitions begin at the 
deadline for filing short-form applications to participate in an 
auction and end at the post-auction down payment deadline. Applicants 
making or receiving prohibited communications must report such 
communications in writing to the Commission immediately. The current 
rule provides that such reports be filed with the Office of the 
Secretary, and that a copy be sent to the Chief of the Auctions and 
Spectrum Access Division, Wireless Telecommunications Bureau.
    4. The creation and filing of the required reports unavoidably 
creates a risk that information that the rule is intended to restrict 
may be disseminated inadvertently. The reports required under the rule 
themselves may constitute or contain information that applicants are 
otherwise barred from sharing. The Bureau has attempted to address this 
concern by advising applicants to request confidential treatment when 
filing reports. The Commission concludes that it can further minimize 
the risk of inadvertent dissemination by requiring parties to file only 
a single report and to file that report with Commission personnel 
expressly charged with administering the Commission's auctions. 
Accordingly, the Commission amends 47 CFR 1.2105(c)(6) of its rules to 
provide that reports required by that section shall be filed as 
directed in the public notices that describe the procedures for the 
bidding that was the subject of the reported communication. If no 
public notice provides direction, such reports shall be filed with the 
Chief of the Auctions and Spectrum Access Division, Wireless 
Telecommunications Bureau, by the most expeditious means available. The 
Commission delegates to the Bureau the authority to specify how such 
reports shall be made.
    5. The current heading of 47 CFR 1.2105(c) of the Commission's 
rules is Prohibition of collusion. Given that collusion is a term used 
in many contexts, legal and economic, the Commission recognizes that 
using it to describe the prohibitions of this section may cause 
confusion. Accordingly, the Commission amends the heading of 47 CFR 
1.2105(c) to read Prohibition of certain communications. This amendment 
makes no change to the substance of the rule, or to its interpretation 
or application.

Modifying Applications To Participate in Commission Auctions

    6. 47 CFR 1.65(a) of the rules currently obligates an applicant to 
maintain the accuracy and completeness of information furnished in any 
application pending before the Commission and to notify the Commission 
as promptly as possible and in any event within 30 days of any 
substantial change that may be of decisional significance to that 
application. Failure to comply exposes an applicant to dismissal of its 
application and, potentially, enforcement action. 47 CFR 1.2105(b) 
contains additional rules specifically addressing the modification and

[[Page 4702]]

dismissal of short-form applications in competitive bidding 
proceedings.
    7. The Commission finds that, in the context of competitive bidding 
for Commission construction permits and licenses, it is appropriate and 
reasonable to require that applicants furnish additional or corrected 
information more quickly than within 30 days. Most, if not all, 
information in auction applications is made available to the public and 
all auction participants during the auction. Auction participants may 
depend on ownership information in other participants' applications 
when determining whether contact with a third party regarding potential 
financing is permissible under 47 CFR 1.2105(c). In addition, if a 
change to an application could raise an issue as to the applicant's 
continued eligibility to participate, the Bureau needs the information 
as soon as possible in order to consider whether to take any action and 
minimize disruption of the auction. Accordingly, through its public 
notices, the practice of the Bureau has been to require reports or 
amendments to short-form applications within a shorter interval than 30 
days. The Bureau also has long required that any change that causes a 
loss of or reduction in eligibility for a bidding credit be reported 
immediately.
    8. The Commission amends 47 CFR 1.65(a) and 1.2105(b) of its rules 
to require applicants in competitive bidding proceedings to furnish 
additional or corrected information within five days of a significant 
occurrence, or to amend their short-form applications no more than five 
days after the applicant becomes aware of the need for amendment. The 
Commission believes this change will facilitate the auction process, 
making the information available promptly to all participants and 
enabling the Bureau to act expeditiously on those changes when such 
action is necessary. Moreover, the Commission emphasizes that 
applicants can readily make and submit any changes to their short-form 
applications electronically using the FCC Auction System.
    9. The rule amendments adopted in the Order involve rules of agency 
organization, procedure, or practice. The notice and comment and 
effective date provisions of the Administrative Procedure Act are 
therefore inapplicable.

Paperwork Reduction Act

    10. The Order contains a change to previously approved information 
collection requirements with respect to 47 CFR 1.2105(c). The change is 
neither material nor substantive and, accordingly, is not subject to 
the Paperwork Reduction Act of 1995, Public Law 104-13. More 
specifically, the rule amendments will modify the provision specifying 
how parties make reports required pursuant to 47 CFR 1.2105(c)(6) so 
that parties shall make the reports as directed by public notice or 
only to the Chief of the Auctions and Spectrum Access Division, 
Wireless Telecommunications Bureau, rather than to the Chief and the 
Office of the Secretary of the Commission, as required prior to the 
modification. Given that this change is neither material nor 
substantive, this document does not contain any new or modified 
information collection burden for small business concerns with fewer 
than 25 employees, pursuant to the Small Business Paperwork Relief Act 
of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4).

Congressional Review Act

    11. The Commission will not send a copy of this Order to Congress 
and the Government Accountability Office pursuant to the Congressional 
Review Act, 5 U.S.C. 801(a)(1)(A), because the amended rules are rules 
of agency organization, procedure or practice that do not substantially 
affect the rights or obligations of non-agency parties.

Ordering Clause

    12. Accordingly, it is ordered, that pursuant to sections 4(i), 
4(j), 5(c), 303(r), 47 U.S.C. 154(i), 154(j), 155(c), 303(r) of the 
Communications Act of 1934, as amended, 47 CFR part 1 is amended 
effective March 1, 2010.

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Competitive bidding, 
Telecommunications.

Federal Communications Commission.
Alethea Lewis,
Federal Register Liaison.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 1 as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority of part 1 continues to read as follows:

    Authority:  15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(j), 160, 
201, 225, and 303.


0
2. Section 1.65 is amended by revising paragraph (a) to read as 
follows:


Sec.  1.65  Substantial and significant changes in information 
furnished by applicants to the Commission.

    (a) Each applicant is responsible for the continuing accuracy and 
completeness of information furnished in a pending application or in 
Commission proceedings involving a pending application. Except as 
otherwise required by rules applicable to particular types of 
applications, whenever the information furnished in the pending 
application is no longer substantially accurate and complete in all 
significant respects, the applicant shall as promptly as possible and 
in any event within 30 days, unless good cause is shown, amend or 
request the amendment of the application so as to furnish such 
additional or corrected information as may be appropriate. Except as 
otherwise required by rules applicable to particular types of 
applications, whenever there has been a substantial change as to any 
other matter which may be of decisional significance in a Commission 
proceeding involving the pending application, the applicant shall as 
promptly as possible and in any event within 30 days, unless good cause 
is shown, submit a statement furnishing such additional or corrected 
information as may be appropriate, which shall be served upon parties 
of record in accordance with Sec.  1.47. Where the matter is before any 
court for review, statements and requests to amend shall in addition be 
served upon the Commission's General Counsel. For the purposes of this 
section, an application is ``pending'' before the Commission from the 
time it is accepted for filing by the Commission until a Commission 
grant or denial of the application is no longer subject to 
reconsideration by the Commission or to review by any court.
* * * * *

0
3. Section 1.2105 is amended by revising the section heading, adding 
paragraph (b)(4), and by revising paragraph (c)(6) to read as follows:


Sec.  1.2105  Prohibition of certain communications.

* * * * *
    (b) * * *
    (4) Applicants shall have a continuing obligation to make any 
amendments or modifications that are necessary to maintain the accuracy 
and completeness of information furnished in pending applications. Such 
amendments or modifications shall be made as promptly as possible, and 
in no case more than five business days after applicants become aware 
of the need to make any amendment or modification, or five business 
days after the reportable

[[Page 4703]]

event occurs, whichever is later. An applicant's obligation to make 
such amendments or modifications to a pending application continues 
until they are made.
    (c) * * *
    (6) Any applicant that makes or receives a communication of bids or 
bidding strategies prohibited under paragraph (c)(1) of this section 
shall report such communication in writing to the Commission 
immediately, and in no case later than five business days after the 
communication occurs. An applicant's obligation to make such a report 
continues until the report has been made. Such reports shall be filed 
as directed in public notices detailing procedures for the bidding that 
was the subject of the reported communication. If no public notice 
provides direction, such notices shall be filed with the Chief of the 
Auctions and Spectrum Access Division, Wireless Telecommunications 
Bureau, by the most expeditious means available.
* * * * *
[FR Doc. 2010-1878 Filed 1-28-10; 8:45 am]
BILLING CODE 6712-01-P