[Federal Register Volume 76, Number 14 (Friday, January 21, 2011)]
[Notices]
[Pages 3892-3906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1375]


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FEDERAL COMMUNICATIONS COMMISSION

[AU Docket No. 10-183; DA 10-2253]


Auction of FM Broadcast Construction Permits Rescheduled for 
April 27, 2011; Notice and Filing Requirements, Minimum Opening Bids, 
Upfront Payments, and Other Procedures for Auction 91

AGENCY: Federal Communications Commission.

[[Page 3893]]


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 the auction. This 
auction, which is designated as Auction 91, is now scheduled to start 
on April 27, 2011.

DATES: Applications to participate in Auction 91 must be filed prior to 
6 p.m. Eastern Time (ET) on February 10, 2011. Bidding for construction 
permits in Auction 91 is scheduled to begin on April 27, 2011.

FOR FURTHER INFORMATION CONTACT: Wireless Telecommunications Bureau, 
Auctions and Spectrum Access Division: For legal questions: Lynne Milne 
or Howard Davenport at (202) 418-0660. For general auction questions: 
Roy Knowles or Linda Sanderson at (717) 338-2829. Media Bureau, Audio 
Division: For licensing information and service rule questions: Lisa 
Scanlan or Tom 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 91 
Procedures Public Notice, which was released on December 3, 2010. The 
complete text of the Auction 91 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. ET Monday 
through Thursday and from 8 a.m. to 11:30 a.m. ET on Friday in the FCC 
Reference Information Center, 445 12th Street, SW., Room CY-A257, 
Washington, DC 20554. The Auction 91 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 Web site: 
http://www.BCPIWEB.com, using document number DA 10-2253 for the 
Auction 91 Procedures Public Notice. The Auction 91 Procedures Public 
Notice and related documents are also available on the Internet at the 
Commission's Web site: http://wireless.fcc.gov/auctions/91/.

I. General Information

A. Introduction

    1. The Wireless Telecommunications and the Media Bureaus 
(collectively, the Bureaus) announce a new start date and pre-auction 
deadlines for the upcoming auction of certain FM broadcast construction 
permits and establish the procedures and minimum opening bid amounts 
for the auction. On September 21, 2010, the Bureaus released a public 
notice seeking comment on competitive bidding procedures to be used in 
Auction 91. Five parties submitted five comments in response to the 
Auction 91 Comment Public Notice, 75 FR 61752, October 6, 2010, and two 
entities submitted filings by the reply comment deadline.
i. Construction Permits in Auction 91
    2. Auction 91 will offer 144 construction permits in the FM 
broadcast service as listed in Attachment A of the Auction 91 
Procedures Public Notice. The construction permits to be auctioned are 
for 144 new FM allotments, including 37 construction permits that were 
offered but not sold in Auction 79. These construction permits are for 
vacant FM allotments, reflecting FM channels assigned to the FM Table 
of Allotments (Table), pursuant to the Commission's established 
rulemaking procedures, and are designated for use in the indicated 
communities.
    3. Attachment A to the Auction 91 Procedures Public Notice reflects 
certain changes to the list of construction permits that were proposed 
for inclusion in this auction in the Auction 91 Comment Public Notice. 
The Bureaus removed three construction permits that were listed in 
Attachment A to the Auction 91 Comment Public Notice: (1) MM-FM767-C1 
on Channel 250C1 at Tuba City, Arizona; (2) MM-FM859-A on Channel 285A 
at Union Gap, Washington; and (3) MM-FM807-C2 on Channel 254C2 at 
Ennis, Montana. The correct listing for the Ennis vacant FM allotment 
is MM-FM411-C2. In addition, the correct allotment coordinates for MM-
FM797-A, Adams, Massachusetts, Channel 255A are listed in Attachment A 
to the Auction 91 Procedures Public Notice. The Bureaus will not offer 
allotments sought to be added by two commenters and will instead make 
them available in an upcoming auction of FM broadcast construction 
permits.
    4. Applicants may apply for any vacant FM allotment listed in 
Attachment A of the Auction 91 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 for a particular construction permit submits an upfront 
payment, that applicant is required to submit a bid in order to obtain 
the construction permit.
    5. One commenter contends that the Commission's rules should be 
revised to automatically delete allotments that are offered at auction 
but receive no bids. The commenter suggests that such vacant allotments 
may hinder efforts by existing licensees to change channels or cities 
of license. The commenter also argues that, in the event that only one 
applicant places a bid on a permit, that applicant should not be 
required to submit a payment for the permit. Adoption of this proposal 
would require reversal of the Commission's determination that mutual 
exclusivity is determined in the auction context by the filing of 
short-form applications for the same permit. These proposed changes 
would require amendment of the Commission's rules and are thus outside 
of the scope of this proceeding, which is confined to establishing 
procedures for the conduct of this auction of FM construction permits. 
Because these proposals are outside of the scope of this proceeding, 
the Bureaus are unable to consider them here.

B. Rules and Disclaimers

i. Relevant Authority
    6. Prospective applicants must familiarize themselves thoroughly 
with the Commission's general competitive bidding rules, including 
recent amendments and clarifications, as well as Commission decisions 
in proceedings regarding competitive bidding procedures, application 
requirements, and obligations of Commission licensees. 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 1.2101-1.2112 and 73.5000-73.5009. 
Prospective bidders must also be thoroughly familiar with the 
procedures, terms and conditions contained in the Auction 91 Procedures

[[Page 3894]]

Public Notice, and the authorities cited therein.
    7. 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 the Bureaus 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.
ii. Prohibited Communications and Compliance With Antitrust Laws
    8. To ensure the competitiveness of the auction process, 47 CFR 
1.2105(c) prohibits auction applicants 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 Form 
175) as parties with whom they have entered into agreements pursuant to 
47 CFR 1.2105(a)(2)(viii).
a. Entities Subject to Section 1.2105
    9. 47 CFR 1.2105(c)'s prohibition on certain communications will 
apply to any applicants that submit short-form applications seeking to 
participate in a Commission auction for construction permits in the 
same geographic license area. Thus, unless they have identified each 
other on their short-form applications as parties with whom they have 
entered into agreements under 47 CFR 1.2105(a)(2)(viii), applicants for 
any of the same geographic license areas must affirmatively avoid all 
communications with or disclosures to each other that affect or 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 applies to all applicants regardless 
of whether such applicants become qualified bidders or actually bid. In 
broadcast services, 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., Whitehall, 
Montana, Channel 274A, MM-FM185A). In Auction 91, this rule would apply 
to applicants designating on the short-form application any of the same 
FM allotments.
    10. Applicants are also reminded that, for purposes of this 
prohibition on certain communications, 47 CFR 1.2105(c)(7)(i) defines 
applicant as including all officers and directors of the entity 
submitting a short-form application to participate in the auction, all 
controlling interests of that entity, as well as all holders of 
partnership and other ownership interests and any stock interest 
amounting to 10 percent or more of the entity, or outstanding stock, or 
outstanding voting stock of the entity submitting a short-form 
application. For example, where an individual served as an officer for 
two or more applicants, the Bureaus have found that the bids and 
bidding strategies of one applicant are necessarily conveyed to the 
other applicant, and, absent a disclosed bidding agreement, an apparent 
violation of 47 CFR 1.2105(c) occurs.
    11. Individuals and entities subject to 47 CFR 1.2105(c) should 
take special care in circumstances where their employees may receive 
information directly or indirectly from a competing applicant relating 
to any competing applicant's bids or bidding strategies. The Bureaus 
have not addressed situations where non-principals (i.e., those who are 
not officers or directors and thus not considered to be the applicant) 
receive information regarding a competing applicant's bids or bidding 
strategies and whether that information might be deemed to necessarily 
convey to the applicant. An exception to the prohibition on certain 
communications allows non-controlling interest holders to obtain 
interests in more than one competing applicant without violating 47 CFR 
1.2105(c) provided specified conditions are met (including a 
certification that no prohibited communications have occurred or will 
occur), but that exception does not extend to controlling interest 
holders.
    12. Moreover, Auction 91 applicants are encouraged not to use the 
same individual as an authorized bidder. A violation of 47 CFR 
1.2105(c) 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 47 CFR 1.2105(c).
b. Prohibition Applies Until Down Payment Deadline
    13. The 47 CFR 1.2105(c) prohibition on certain communications 
begins at the short-form application filing deadline and ends at the 
down payment deadline after the auction, which will be announced in a 
future public notice.
c. Prohibited Communications
    14. Applicants should note that they must not communicate directly 
or indirectly about bids or bidding strategy to other applicants in 
this auction. 47 CFR 1.2105(c) prohibits not only a communication about 
an applicant's own bids or bidding strategy, but also a communication 
of another applicant's bids or bidding strategy. While 47 CFR 1.2105(c) 
does not prohibit non-auction-related business negotiations among 
auction applicants, applicants must remain vigilant so as not to 
communicate directly or indirectly information that affects, or could 
affect, bids or bidding strategy, or the negotiation of settlement 
agreements.
    15. The Commission remains vigilant about prohibited communications 
taking place in other situations. Public disclosure of information 
relating to bids, or bidding strategies, or to post auction market 
structures, may violate 47 CFR 1.2105(c). 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. The use of the 
Commission's bidding system to disclose an applicant's bidding strategy 
or market information will not be tolerated. Similarly, an applicant's 
public statement of intent not to participate in bidding in this 
auction also could violate this rule.
d. Disclosure of Bidding Agreements and Arrangements
    16. 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 applications. If parties agree in 
principle on all material terms prior to the short-form application 
filing deadline, each party to the agreement must identify the other 
party or parties to the agreement on its short-form application under 
47 CFR 1.2105(c), even if the agreement has not been reduced to 
writing. If the parties have

[[Page 3895]]

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 negotiation, discussion or communication with 
any other applicants after the short-form application filing deadline.
e. Section 1.2105(c) Certification
    17. By electronically submitting a short-form application, each 
applicant in Auction 91 certifies its compliance with 47 CFR 1.2105(c) 
and 73.5002. However, the Bureau cautions that merely filing a 
certifying statement as part of an application will not outweigh 
specific evidence that a prohibited communication 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 47 CFR 1.2105(c) may be 
subject to sanctions.
f. Duty To Report Prohibited Communications: Reporting Procedure
    18. 47 CFR 1.2105(c)(6) provides that any applicant that makes or 
receives a communication that appears to violate 47 CFR 1.2105(c) must 
report such communication in writing to the Commission immediately, and 
in no case later than five business days after the communication 
occurs. The Commission has clarified that each applicant's obligation 
to report any such communication continues beyond the five-day period 
after the communication is made, even if the report is not made within 
the five-day period.
    19. 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 of any substantial change that 
may be of decisional significance to that application. Thus, 47 CFR 
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. An applicant is therefore required by 
47 CFR 1.65 to report to the Commission any communication the applicant 
has made to or received from another applicant after the short-form 
application filing deadline that affects or has the potential to affect 
bids or bidding strategy, unless such communication is made to or 
received from a party to an agreement identified under 47 CFR 
1.2105(a)(2)(viii).
    20. 47 CFR 1.65(a) and 1.2105(c) 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. These rules are intended to facilitate 
the auction process by making the information available promptly to all 
participants and to enable the Bureaus to act expeditiously on those 
changes when such action is necessary.
    21. A party reporting any communication pursuant to 47 CFR 1.65, 
1.2105(a)(2), or 1.2105(c)(6) must take care to ensure that any report 
of a prohibited communication does not itself give rise to a violation 
of 47 CFR 1.2105(c). For example, a party's report of a prohibited 
communication could violate the rule by communicating prohibited 
information to other applicants through the use of Commission filing 
procedures that would allow such materials to be made available for 
public inspection.
    22. 47 CFR 1.2105(c) requires parties to file only a single report 
concerning such communication and to file that report with Commission 
personnel expressly charged with administering the Commission's 
auctions. This rule is designed to minimize the risk of inadvertent 
dissemination of information in such reports. Pursuant to the amended 
rule, any reports required by 47 CFR 1.2105(c) must be filed consistent 
with the instructions set forth in the Auction 91 Procedures Public 
Notice. For Auction 91, such reports must be filed with the Chief of 
the Auctions and Spectrum Access Division, Wireless Telecommunications 
Bureau, by the most expeditious means available. Specifically, any such 
report must be submitted by e-mail to [email protected] or delivered to 
the following address: Margaret W. Wiener, Chief, Auctions and Spectrum 
Access Division, Wireless Telecommunications Bureau, Federal 
Communications Commission, 445 12th Street, SW., Room 6423, Washington, 
DC 20554.
    23. A party seeking to report such a prohibited communication 
should consider submitting its report with a request that the report or 
portions of the submission be withheld from public inspection pursuant 
to 47 CFR 0.459. Such parties also are encouraged to coordinate with 
the Auctions and Spectrum Access Division staff if they have any 
questions about the procedures for submitting such reports. The Auction 
91 Procedures Public Notice provides additional guidance on procedures 
for submitting application-related information.
g. Winning Bidders Must Disclose Terms of Agreements
    24. 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, understanding, or other arrangement 
entered into relating to the competitive bidding process, including any 
agreement relating to the post-auction market structure. Applicants 
must be aware that failure to comply with the Commission's rules can 
result in enforcement action.
h. Additional Information Concerning Rule Prohibiting Certain 
Communications
    25. A summary listing of documents issued by the Commission and the 
Bureaus addressing the application of 47 CFR 1.2105(c) may be found in 
Attachment D of the Auction 91 Procedures Public Notice.
i. Antitrust Laws
    26. 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 47 CFR 
1.2105(c) 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 submitted a short-form 
application. 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. See 47 
CFR 1.2109(d).
ii. Due Diligence
    27. Potential applicants are reminded that they are solely 
responsible for investigating and evaluating all technical and 
marketplace factors that may have a bearing on the value of the 
construction permits for broadcast facilities they are seeking in this 
auction. Bidders are responsible for assuring themselves that, if they 
win a construction permit, they will be able to build and operate 
facilities in accordance with the Commission's rules. 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

[[Page 3896]]

opportunity to become an FCC construction permittee in a 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.
    28. Applicants should perform their individual due diligence before 
proceeding, as they would with any new business venture. 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. Reports and orders adopted in FM allotment rulemaking 
proceedings often include restrictions, including site restrictions or 
expense reimbursement requirements. Additionally, potential bidders 
should perform technical analyses or refresh their previous analyses to 
assure themselves that, should they be a winning bidder for any Auction 
91 construction permit, they will be able to build and operate 
facilities that will fully comply with the Commission's technical and 
legal requirements. Applicants are strongly encouraged to inspect any 
prospective transmitter sites located in, or near, the service area for 
which they plan to bid, confirm the availability of such sites, and 
also to familiarize themselves with the Commission's rules regarding 
the National Environmental Policy Act at 47 CFR chapter 1, part 1, 
subpart I.
    29. Applicants are strongly encouraged to conduct their own 
research prior to Auction 91 in order to determine the existence of any 
pending administrative or judicial proceedings, including pending 
allocation rulemaking proceedings that might affect their decision to 
participate in the auction. Participants in Auction 91 are strongly 
encouraged to continue such research throughout the auction. The due 
diligence considerations mentioned in the Auction 91 Procedures Public 
Notice do not comprise an exhaustive list of steps that should be 
undertaken prior to participating in this auction. As always, the 
burden is on the potential bidder to determine how much research to 
undertake, depending upon specific facts and circumstances.
    30. Applicants should also be aware that certain pending and future 
proceedings before the Commission--including applications, applications 
for modification, petitions for rulemaking, requests for special 
temporary authority, waiver requests, petitions to deny, petitions for 
reconsideration, informal objections, and applications for review--may 
relate to particular applicants, incumbent permittees, incumbent 
licensees, or the construction permits available in Auction 91. In 
addition, pending and future judicial proceedings may relate to 
particular applicants, incumbent permittees, incumbent licensees, or 
the construction permits available in Auction 91. Prospective 
applicants are responsible for assessing the likelihood of the various 
possible outcomes and for considering their potential impact on 
construction permits available in this auction.
    31. 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 91. 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. 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 91.
    32. 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.
    33. A commenter contended that the Bureaus should provide 
additional information in the Auction 91 public notices about the 
history of the allotments being offered and suggests that the Media 
Bureau's Consolidated Data Base System (CDBS) should contain 
information as to whether a permit was previously offered at auction, 
as well as details concerning cancellation of a permit due to a failure 
to construct or licensee default. The Bureaus noted that Attachment A 
to the Auction 91 Procedures Public Notice indicates whether a permit 
was previously offered at auction. Further, the Commission makes 
various databases and other sources of information, including CDBS, the 
auctions databases and copies of Commission decisions, available to the 
public without charge. Potential bidders may research the background of 
allotments using this information as well as other sources, just as 
this commenter has done. The Bureaus rejected this commenter's claim 
that absent the affirmative disclosure of such background information, 
the Commission fails to meet a due diligence obligation. It is the 
responsibility of each potential bidder to undertake research to ensure 
that any permits won in this auction will be suitable for its business 
plans and needs. Each potential bidder must undertake its own 
assessment of the relevance and importance of information gathered as 
part of its due diligence efforts.
iii. Use of Integrated Spectrum Auction System
    34. The Commission will make available a browser-based bidding 
system to allow bidders to participate in Auction 91 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.
iv. Environmental Review Requirements
    35. Permittees or licensees must comply with the Commission's rules 
regarding implementation of the National Environmental Policy Act and 
other Federal environmental statutes. The construction of a broadcast 
facility is a Federal action and the permittee or licensee must comply 
with the Commission's environmental rules for each such facility. 
Additional information about such Commission requirements is provided 
in the Auction 91 Procedures Public Notice.

[[Page 3897]]

C. Auction Specifics

i. Auction Start Date
    36. Bidding in Auction 91 has been rescheduled and will begin on 
Wednesday, April 27, 2011. The Bureaus have postponed the originally 
scheduled start of the auction for reasons of administrative and bidder 
convenience. Although one commenter requested a later starting date, 
the Bureaus concluded that rescheduling the starting date for Auction 
91 from March 29, 2011 to April 27, 2011, will help ensure optimum 
participation and an efficient auction process, as well as provide 
prospective applicants with additional time for planning and 
preparation.
    37. The initial schedule for bidding rounds will be announced by 
public notice at least one week before the start of the auction. 
Moreover, unless otherwise announced, bidding on all construction 
permits will be conducted on each business day until bidding has 
stopped on all construction permits.
ii. Bidding Methodology
    38. The bidding methodology for Auction 91 will be simultaneous 
multiple round bidding. The Commission will conduct this auction over 
the Internet using the FCC Auction System, and telephonic bidding will 
be available as well. Qualified bidders are permitted to bid 
electronically via the Internet or by telephone. All telephone calls 
are recorded.
iii. Pre-Auction Dates and Deadlines
    39. The following dates and deadlines apply:
Auction Tutorial Available (via Internet)--January 31, 2011
Short-Form Application (FCC Form 175) Filing Window Opens--January 31, 
2011; 12 noon ET
Short-Form Application (FCC Form 175) Filing Window Deadline--February 
10, 2011; prior to 6 p.m. ET
Upfront Payments (via wire transfer)--March 21, 2011; 6 p.m. ET
Mock Auction--April 25, 2011
Auction Begins--April 27, 2011

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

A. General Information Regarding Short-Form Applications

    40. 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 
must file streamlined, short-form applications in which they certify 
under penalty of perjury as to their qualifications. Each applicant 
must take seriously its duties and responsibilities and carefully 
determine before filing an application that the applicant has the 
legal, technical and financial resources to participate in Auction 91, 
as well as construct and operate an FM station if the auction applicant 
becomes a licensee as a result of its participation in this auction. 
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 must file 
more comprehensive long-form applications.
    41. Entities and individuals seeking construction permits available 
in Auction 91 must file a short-form application electronically via the 
FCC Auction System prior to 6 p.m. ET on February 10, 2011, following 
the procedures prescribed in Attachment B to the Auction 91 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. Beginning on the application filing deadline, applicants filing 
a short-form application are subject to 47 CFR 1.2105(c) and 73.5002.
    42. Applicants bear full responsibility for submitting accurate, 
complete and timely short-form applications. All applicants must 
certify on their short-form applications under penalty of perjury that 
they are legally, technically, financially and otherwise qualified to 
hold a license. Applicants should read carefully the instructions set 
forth in Attachment B to the Auction 91 Procedures Public Notice and 
should consult the Commission's rules to ensure that all information 
and materials required in that public notice and under the Commission's 
rules is included within their short-form applications.
    43. An individual or entity may not submit more than one short-form 
application for a single auction. If a party submits multiple short-
form applications, only one application may be accepted for filing.
    44. Applicants also should note that submission of a short-form 
application (and any amendments thereto) 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 and 
correct. Applicants are not permitted to make major modifications to 
their applications; such impermissible changes include a change of the 
certifying official to the application. 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.

B. Permit Selection

    45. An applicant must select the construction permits on which it 
wants to bid from the Eligible Permits list on its short-form 
application. To assist applicants in identifying construction permits 
of interest that will be available in Auction 91, the FCC Auction 
System includes a filtering mechanism that allows an applicant to 
filter the Eligible Permits list. The applicant will make selections 
for one or more of the filter criteria and the system will produce a 
list of construction permits satisfying the specified criteria. The 
applicant may select all the construction permits in the customized 
list or select individual construction permits from the list. 
Applicants also will be able to select construction permits from one 
customized list and then create additional customized lists to select 
additional construction permits.
    46. Applicants interested in participating in Auction 91 must have 
selected construction permit(s) available in this auction by the short-
form application filing deadline. Applicants must review and verify 
their construction permit selections before the deadline for submitting 
short-form applications. Applicants will not be able to change their 
construction permit selections after the short-form application filing 
deadline. The FCC Auction System will not accept bids from an applicant 
on construction permits that the applicant has not selected on its 
short-form application.

C. New Entrant Bidding Credit

    47. Under the tiered New Entrant Bidding Credit for broadcast 
auction applicants with no, or very few, other media interests, the 
interests of the applicant, and of any individuals or entities with an 
attributable interest in the applicant, in other media of mass 
communications are considered when determining an applicant's 
eligibility for the New Entrant Bidding Credit. In Auction 91, the 
bidder's attributable interests are determined as of the short-

[[Page 3898]]

form application filing deadline. 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. 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.
    48. Under traditional broadcast attribution rules, 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.
    49. 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.
    50. 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.
    51. The Commission relaxed the equity/debt plus (EDP) attribution 
standard, to allow for higher investment opportunities in entities 
meeting the definition of eligible entities. An eligible entity is 
defined in Note 2(i) of 47 CFR 73.3555. The Commission allows the 
holder of an equity or debt interest in the applicant to exceed the 
above-noted 33 percent threshold without triggering attribution 
provided (1) the combined equity and debt in the eligible entity is 
less than 50 percent; or (2) the total debt in the eligible entity does 
not exceed 80 percent of the asset value, and the interest holder does 
not hold any equity interest, option, or promise to acquire an equity 
interest in the eligible entity or any related entity.
    52. 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. 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. Any bidder asserting new entrant bidding status 
must have de facto as well as de jure control of the entity claiming 
the bidding credit. See 47 CFR 73.5007.

D. Application Requirements

    53. In addition to the ownership information required pursuant to 
47 CFR 1.2112, applicants seeking a New Entrant Bidding Credit are 
required to establish on their short-form applications that they 
satisfy the eligibility requirements to qualify for the bidding credit. 
In those cases, 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 has any attributable interests in 
more than three media of mass communications, and must identify and 
describe such media of mass communications. 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 
47 CFR 73.5008(b).

E. Bidding Credits

    54. Applicants that qualify for the New Entrant Bidding Credit, as 
specified in the applicable rule, are eligible for a bidding credit 
that represents the amount by which a bidder's winning bid is 
discounted. The size of a New Entrant Bidding Credit depends on the 
number of ownership interests in other media of mass communications 
that are attributable to the bidder-entity and its attributable 
interest-holders. A 35 percent bidding credit will be given to a 
winning bidder if it, and/or any individual or entity with an 
attributable interest in the winning bidder, has no attributable 
interest in any other media of mass communications, as defined in 47 
CFR 73.5008. A 25 percent bidding credit will be given to a winning 
bidder if it, and/or any individual or entity with an attributable 
interest in the winning bidder, has an attributable interest in no more 
than three mass media facilities, as defined in 47 CFR 73.5008. No 
bidding credit will be given if any of the commonly owned mass media 
facilities serve the same area as the broadcast permit proposed in the 
auction, 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. For purposes of determining whether a broadcast 
permit identified for bidding in the auction is in the same area as an 
applicant's existing mass media facilities, the coverage area of the 
to-be-auctioned facility is calculated using maximum class facilities 
at the allotment reference coordinates, NOT applicant-specified 
preferred site coordinates.
    55. 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.

F. Disclosure of Bidding Arrangements

    56. Applicants will be required to identify in their short-form 
application 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.

[[Page 3899]]

G. Ownership Disclosure Requirements

    57. All applicants to participate in a broadcast auction 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, including both direct and 
indirect ownership interests of 10 percent or more. The ownership 
disclosure standards for the short-form application are prescribed in 
47 CFR 1.2105 and 1.2112. Each applicant is responsible for information 
submitted in its short-form application being complete and accurate.
    58. Each applicant is responsible for ensuring that the information 
submitted in its short-form application for Auction 91 is complete and 
accurate. 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 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.

H. Provisions Regarding Former and Current Defaulters

    59. Current defaulters or delinquents are not eligible to 
participate in Auction 91, but former defaulters or delinquents can 
participate so long as they are otherwise qualified and make upfront 
payments that are 50 percent more than the normal upfront payment 
amounts. An applicant is considered a current defaulter or a current 
delinquent when it, any of its affiliates, any of its controlling 
interests, or any of the affiliates of its controlling interests, is in 
default on any payment for any Commission construction permit or 
license (including a down payment) or is delinquent on any non-tax debt 
owed to any Federal agency as of the filing deadline for short-form 
applications. An applicant is considered a former defaulter or a former 
delinquent when it, any of its affiliates, any of its controlling 
interests, or any of the affiliates of its controlling interests, have 
defaulted on any Commission construction permit or license or been 
delinquent on any non-tax debt owed to any Federal agency, but have 
since remedied all such defaults and cured all of the outstanding non-
tax delinquencies.
    60. On the short-form application, an applicant must certify under 
penalty of perjury that it, its affiliates, its controlling interests, 
and the affiliates of its controlling interests, as defined by 47 CFR 
1.2110, are not in default on any payment for a Commission construction 
permit or license (including down payments) and that it is not 
delinquent on any non-tax debt owed to any Federal agency. Each 
applicant must also state under penalty of perjury whether it, its 
affiliates, its controlling interests, and the affiliates of its 
controlling interests, have ever been in default on any Commission 
construction permit or license or have ever been delinquent on any non-
tax debt owed to any Federal agency. 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. These statements and 
certifications are prerequisites to submitting an application to 
participate in an FCC auction.
    61. The Auction 91 Procedures Public Notice also reviews the 
Bureaus' previous guidance on default and delinquency disclosure 
requirements in the context of the short-form application process.
    62. 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 47 CFR 1.2105 and 1.2106, with regard to current 
and former defaults or delinquencies.
    63. Applicants are reminded, however, that the Commission's Red 
Light Display System, which provides information regarding debts 
currently owed to the Commission, may not be determinative of an 
auction applicant's ability to comply with the default and delinquency 
disclosure requirements of 47 CFR 1.2105. Thus, while the red light 
rule ultimately may prevent the processing of long-form applications by 
auction winners, an auction applicant's lack of current red light 
status is not necessarily determinative of its eligibility to 
participate in an auction or of its upfront payment obligation.
    64. Moreover, prospective applicants in Auction 91 should note that 
any long-form applications filed after the close of 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 applications 
dismissed will be deemed to have defaulted and will be subject to the 
default payments under 47 CFR 1.2104(g) and 1.2109(c).

I. Optional Applicant Status Identification

    65. Applicants owned by members of minority groups and/or women, as 
defined in 47 CFR 1.2110(c)(3), and rural telephone companies, as 
defined in 47 CFR 1.2110(c)(4), may identify themselves regarding this 
status in filling out their short-form applications. This applicant 
status information is collected for statistical purposes only and 
assists the Commission in monitoring the participation of designated 
entities in its auctions.

J. Noncommercial Educational Status Election

    66. In the NCE Second Report and Order, 68 FR 26220, May 15, 2003, 
the Commission held that applications for noncommercial educational 
(NCE) FM stations on nonreserved spectrum, filed during an FM auction 
filing window, will be returned as unacceptable for filing if mutually 
exclusive with any application for a commercial station. If an FCC Form 
175 filed during the Auction 91 filing window identifying the 
application's proposed station as noncommercial educational is mutually 
exclusive with any application filed during that window for a 
commercial station, the former will be returned as unacceptable for 
filing. For this reason, each prospective applicant in this auction 
should consider carefully if the applicant wishes to propose operation 
for any NCE FM station acquired in this auction. This NCE election 
cannot be

[[Page 3900]]

reversed after the initial application filing deadline.

K. Minor Modifications to Short-Form Applications

    67. After the deadline for filing initial applications, an Auction 
91 applicant is permitted to make only minor changes to its 
application. Permissible minor changes include, among other things, 
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. An applicant is not permitted to make a major 
modification to its application (e.g., change of construction permit 
selection, change control of the applicant, change the certifying 
official, claim eligibility for a higher percentage of bidding credit, 
or change the identification of the application's proposed facilities 
as noncommercial educational) after the initial application filing 
deadline. Thus, any change in control of an applicant, resulting from a 
merger for example, will be considered a major modification to the 
applicant's application, which will consequently be dismissed. The 
Bureaus reiterated that, even if an applicant's short-form application 
is dismissed, the application will remain subject to 47 CFR 1.2105(c)'s 
prohibition on certain communications until the down payment deadline, 
which will be established after the auction closes.
    68. If an applicant wishes to make permissible minor changes to its 
short-form application, such changes should be made electronically to 
its short-form application using the FCC Auction System whenever 
possible. Applicants are reminded to click on the SUBMIT button in the 
FCC Auction System for the change 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, 
submission date, and a unique file number. The Bureaus advise 
applicants to print and retain a copy of the confirmation page.
    69. An applicant cannot use the FCC Auction System outside of the 
initial and resubmission filing windows to make changes to its short-
form application other than administrative changes (e.g. changing 
certain contact information or the name of an authorized bidder). If 
these or other permissible minor changes need to be made outside of 
these windows, the applicant must submit a letter briefly summarizing 
the changes and subsequently update its short-form application in ISAS 
once the system is available. Moreover, after the filing window has 
closed, ISAS will not permit applicants to make certain changes, such 
as the applicant's legal classification and the identification of the 
application's proposed facilities as noncommercial educational.
    70. Any letter describing changes to an applicant's short-form 
application should be submitted by e-mail to [email protected]. The e-
mail summarizing the changes must include a subject or caption 
referring to Auction 91 and the name of the applicant.
    71. According to 47 CFR 1.917, 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) 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.
    72. Applicants must not submit application-specific material 
through the Commission's Electronic Comment Filing System, which was 
used for submitting comments regarding Auction 91.

L. Maintaining Current Information in Short-Form Applications

    73. 47 CFR 1.65 and 1.2105(b) require an applicant to maintain the 
accuracy and completeness of information furnished in its pending 
application and in competitive bidding proceedings to furnish 
additional or corrected information to the Commission within five days 
of a significant occurrence, or to amend a short form application no 
more than five days after the applicant becomes aware of the need for 
the amendment. Changes that cause a loss of or reduction in the 
percentage of bidding credit specified on the originally submitted 
application must be reported immediately, and no later than five 
business days after the change occurs. For example, if ownership 
changes result in the attribution of new interest holders that affect 
the applicant's qualifications for a new entrant bidding credit, such 
information must be clearly stated in the bidder's amendment. Events 
occurring after the application filing deadline, such as the 
acquisition of attributable interests in media of mass communications, 
also may cause diminishment or loss of the bidding credit, and must be 
reported immediately.
    74. 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 application. After the 
application filing deadline, applicants may make only minor changes to 
their applications.
    75. Applicants must click on the Submit button in the FCC Auction 
System for the changes to be submitted and considered by the 
Commission. If 47 CFR 1.65 submissions are needed after the initial 
filing and resubmission windows close, applicants must submit a letter, 
briefly summarizing the changes, by e-mail to [email protected]. The e-
mail summarizing the changes must include a subject or caption 
referring to Auction 91 and the name of the applicant.

III. Pre-Auction Procedures

A. Online Auction Tutorial--Available January 31, 2011

    76. On Monday, January 31, 2011, the Commission will post an 
educational auction tutorial on the Auction 91 web page for prospective 
bidders to familiarize themselves with the auction process. This online 
tutorial will provide information about pre-auction procedures, 
completing short-form applications, auction conduct, the FCC Auction 
Bidding System, auction rules, and broadcast services rules. The 
tutorial will also provide an avenue to ask FCC staff questions about 
the auction, auction procedures, filing requirements, and other matters 
related to this auction. The online tutorial will be accessible using a 
web browser with Adobe Flash Player from the FCC's Auction 91 Web page 
at http://wireless.fcc.gov/auctions/91/ through an Auction Tutorial 
link.

B. Short-Form Applications--Due Prior to 6:00 p.m. ET on February 10, 
2011

    77. In order to be eligible to bid in this auction, applicants must 
follow the procedures set forth in Attachment B to the Auction 91 
Procedures Public Notice to submit a short-form application (FCC Form 
175) electronically via the FCC Auction System. This short-form 
application must be submitted through the FCC Auction System prior to 6 
p.m. ET on February 10, 2011. Late applications will not be accepted. 
Applicants are strongly encouraged to file early and are responsible 
for allowing adequate time for filing their applications. An applicant 
always must click on the SUBMIT button on the

[[Page 3901]]

certify and submit screen to successfully submit its FCC Form 175 and 
any modifications; otherwise the application or changes to the 
application will not be received or reviewed. There is no application 
fee required when filing an FCC Form 175, but an applicant must submit 
a timely upfront payment to be eligible to bid. Any applicant that 
submits a short-form application but fails to timely submit an upfront 
payment will retain its status as an applicant in Auction 91 and will 
remain subject to the Commission's rules prohibiting certain 
communications, 47 CFR 1.2105(c) and 73.5002(d), but, having purchased 
no bidding eligibility, will be not be eligible to bid.

C. Application Processing and Minor Corrections

    78. After the deadline for filing FCC Form 175 applications, the 
Commission will process all timely submitted applications to determine 
which are complete, and subsequently will issue a public notice 
identifying (1) those applications that are complete; (2) those 
applications that are rejected; and (3) those applications that are 
incomplete because of minor defects that may be corrected. The public 
notice will include the deadline for resubmitting corrected 
applications.
    79. Applications specifying the same FM station construction permit 
are considered mutually exclusive. 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 
applications proposing commercial stations will proceed to auction.
    80. Commission staff will communicate only with an applicant's 
contact person or certifying official, as designated on the applicant's 
short-form application, unless the applicant's certifying official or 
contact person notifies the Commission in writing that applicant's 
counsel or other representative is authorized to speak on its behalf. 
Authorizations may be sent by e-mail to [email protected].

D. Upfront Payments--Due March 21, 2011

    81. In order to be eligible to bid in this auction, applicants must 
submit an upfront payment accompanied by an FCC Remittance Advice Form 
(FCC Form 159). After completing its short-form application, an 
applicant will have access to an electronic version of the FCC Form 159 
that can be printed and sent by fax to the Commission's auction payment 
lockbox bank, the U.S. Bank in St. Louis, Missouri. All upfront 
payments must be made as instructed in the Auction 91 Procedures Public 
Notice and must be received in the proper account at U.S. Bank before 6 
p.m. ET on March 21, 2011. All payments must be made in U.S. dollars. 
All payments must be made by wire transfer. An applicant must initiate 
the wire transfer through its bank, authorizing the bank to wire funds 
from the applicant's account to the U.S. Bank in St. Louis, Missouri. 
Upfront payments for Auction 91 go to a lockbox number different from 
the lockboxes used in previous FCC auctions. Failure to deliver a 
sufficient upfront payment, as instructed, by the deadline on March 21, 
2011 will result in dismissal of the short-form application and 
disqualification from participation in the auction.
i. Making Upfront Payments by Wire Transfer
    82. Wire transfer payments must be received before 6 p.m. ET on 
March 21, 2011. No other payment method is acceptable. The Commission 
will not accept checks, credit cards, or automated clearing house 
payments.
    83. At least one hour before placing the order for the wire 
transfer (but on the same business day), applicants must fax a 
completed FCC Form 159 (Revised 2/03) to U.S. Bank at (314) 418-4232. 
On the fax cover sheet, applicants must write Wire Transfer--Auction 
Payment for Auction 91. In order to meet the Commission's upfront 
payment deadline, an applicant's payment must be credited to the 
Commission's account for Auction 91 before the deadline.
    84. Each applicant is responsible for ensuring timely submission of 
its upfront payment and for timely filing of an accurate and complete 
FCC Form 159. To avoid untimely payments, an applicant should 
coordinate with its financial institution well ahead of the due date 
regarding its wire transfer, including a discussion of bank closing 
schedules, and allow sufficient time for the transfer to be initiated 
and completed prior to the deadline. The Commission repeatedly has 
cautioned auction participants about the importance of planning ahead 
to prepare for unforeseen last-minute difficulties in making payments 
by wire transfer. Each applicant also is responsible for obtaining 
confirmation from its financial institution that its wire transfer to 
U.S. Bank was successful and from Commission staff that the Commission 
has timely received the applicant's upfront payment and deposited it 
into the proper account.
ii. FCC Form 159
    85. A completed FCC Form 159 (Revised 2/03) must be faxed to U.S. 
Bank to accompany each upfront payment. Proper completion of FCC Form 
159 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 91 Procedures Public Notice. An electronic 
pre-filled version of the FCC Form 159 is available after submitting 
the FCC Form 175. Payers using the 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 U.S. Bank by fax.
iii. Upfront Payments and Bidding Eligibility
    86. The Commission has delegated to the Bureaus the authority and 
discretion to determine appropriate upfront payments for each auction. 
Upfront payments help deter frivolous or insincere bidding, and provide 
the Commission with a source of funds in the event that the bidder 
incurs liability during the auction.
    87. Applicants that are former defaulters must 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. Applicants must make upfront payments sufficient to obtain 
bidding eligibility on the construction permits on which they will bid. 
The amount of the upfront payment determines 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 particular construction permit, a 
qualified bidder must have selected the construction permit on its FCC 
Form 175 and 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

[[Page 3902]]

construction permits the applicant selected on its FCC Form 175, but 
only enough 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 in any given round. 
(Provisionally winning bids are bids that would become final winning 
bids if the auction were to close after the given round.) A bidder's 
total upfront payment does not affect the total dollar amount the 
bidder may bid on any given construction permit.
    89. The Bureaus adopted upfront payments and bidding units for each 
construction permit in Auction 91. Upfront payment amounts and bidding 
units are set forth in Attachment A of the Auction 91 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 bidding units for all construction permits on which it 
seeks to be active in any given round. Applicants should check their 
calculations carefully, as there is no provision for increasing a 
bidder's eligibility after the upfront payment deadline.
    91. If an applicant is a former defaulter, according to 47 CFR 
1.2106(a), it must calculate its upfront payment for all of its 
identified construction permits by multiplying the number of bidding 
units on which it wishes 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 its construction permits selected on its FCC Form 175, the 
applicant will not be eligible to participate in the auction.

E. 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. Applicants can provide the information 
electronically during the initial short-form application filing window 
after the form 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 faxed to the FCC, Financial Operations, Auctions Accounting 
Group, Attn: Gail Glasser, at (202) 418-2843 (fax). 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.

F. Auction Registration

    93. Approximately ten days before the auction, the Bureaus will 
issue a public notice announcing all qualified bidders for the auction. 
Qualified bidders are those applicants with submitted FCC Form 175 
applications that are deemed timely-filed, accurate, and complete, 
provided that such applicants have timely submitted an upfront payment 
that is sufficient to qualify them to bid.
    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] tokens 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 Wednesday, April 20, 2011, 
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] tokens 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 replacements. Qualified bidders requiring the 
replacement of these items must call Technical Support at (877) 480-
3201, option nine; (202) 414-1250; or (202) 414-1255 (TTY).

G. Remote Electronic Bidding

    97. The Commission will conduct this auction over the Internet, and 
telephonic bidding will be available as well. Only qualified bidders 
are permitted to bid. Each applicant should indicate its bidding 
preference--electronic or telephonic--on its FCC Form 175. In either 
case, each authorized bidder must have its own SecurID[supreg] token, 
which the Commission will provide at no charge. Each applicant with one 
authorized bidder will be issued two SecurID[supreg] tokens, while 
applicants with two or three authorized bidders will be issued three 
tokens. For security purposes, the SecurID[supreg] tokens, 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. Each 
SecurID[supreg] token is tailored to a specific auction. 
SecurID[supreg] tokens issued for other auctions or obtained from a 
source other than the FCC will not work for Auction 91.

H. Mock Auction--April 25, 2011

    98. All qualified bidders will be eligible to participate in a mock 
auction on Monday, April 25, 2011. The mock auction will enable 
qualified bidders 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

    99. The first round of bidding for Auction 91 will begin on 
Wednesday, April 27, 2011. 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
    100. All construction permits in Auction 91 will be auctioned in a 
single auction using the Commission's standard simultaneous multiple-
round 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. Unless otherwise announced, bids will 
be accepted on all construction permits in each round of the auction 
until bidding stops on every construction permit.
ii. Eligibility and Activity Rules
    101. The Bureaus will use upfront payments to determine each 
bidder's initial (maximum) eligibility (as measured in bidding units) 
for Auction 91. The amount of the upfront payment submitted by a bidder 
determines initial bidding eligibility, the maximum

[[Page 3903]]

number of bidding units on which a bidder may be active. Each 
construction permit was assigned a specific number of bidding units as 
listed in Attachment A of the Auction 91 Procedures Public Notice. 
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.
    102. 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.
    103. A bidder's activity level in a round is the sum of the bidding 
units associated with any construction permits covered by new and 
provisionally winning bids. 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.
    104. 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 additional bids in the auction.
iii. Auction Stages
    105. Auction 91 will be conducted in two stages and employ an 
activity rule. A bidder desiring to maintain its current bidding 
eligibility is required to be active on construction permits 
representing at least 75 percent of its current bidding eligibility, 
during each round of Stage One, and at least 95 percent of its current 
bidding eligibility in Stage Two. The Bureaus retain the discretion to 
alter the activity requirements before and/or during the auction as 
circumstances warrant.
    106. Stage One: During the first stage of the auction, a bidder 
desiring to maintain its current bidding eligibility will be required 
to be active on construction permits representing at least 75 percent 
of its current bidding eligibility in each bidding round. Failure to 
maintain the required activity level will result in the use of an 
activity rule waiver or, if the bidder has no activity rule waivers 
remaining, a reduction in the bidder's bidding eligibility in the next 
round. During Stage One, reduced eligibility for the next round will be 
calculated by multiplying the bidder's current round activity (the sum 
of bidding units of the bidder's provisionally winning bids and bids 
during the current round) by four-thirds (\4/3\).
    107. Stage Two: During the second stage of the auction, a bidder 
desiring to maintain its current bidding eligibility is required to be 
active on 95 percent of its current bidding eligibility. Failure to 
maintain the required activity level will result in the use of an 
activity rule waiver or, if the bidder has no activity rule waivers 
remaining, a reduction in the bidder's bidding eligibility in the next 
round. During Stage Two, reduced eligibility for the next round will be 
calculated by multiplying the bidder's current round activity (the sum 
of bidding units of the bidder's provisionally winning bids and bids 
during the current round) by twenty-nineteenths (20/19).
    108. CAUTION: Since activity requirements increase in Stage Two, 
bidders must carefully check their activity during the first round 
following a stage transition to ensure that they are meeting the 
increased activity requirement. This is especially critical for bidders 
that have provisionally winning bids and do not plan to submit new 
bids. In past auctions, some bidders have inadvertently lost bidding 
eligibility or used an activity rule waiver because they did not re-
verify their activity status at stage transitions. Bidders may check 
their activity against the required activity level by logging into the 
FCC Auction System.
iv. Stage Transitions
    109. The auction will start in Stage One. The Bureaus will regulate 
the pace of the auction by announcement. The Bureaus retain the 
discretion to change the activity requirements during the auction, 
including transition the auction from Stage One to Stage Two, to add an 
additional stage with a higher activity requirement, not to transition 
to Stage Two, and to transition to Stage Two with an activity 
requirement that is higher or lower than 95 percent. This determination 
will be based on a variety of measures of auction activity, including, 
but not limited to, the number of new bids and the percentages of 
construction permits (as measured in bidding units) on which there are 
new bids.
v. Activity Rule Waivers
    110. Each bidder in the auction will be provided with three 
activity rule waivers. 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 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 
proactive or automatic 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 rule. 
Once eligibility has been reduced, a bidder will not be permitted to 
regain its lost bidding eligibility even if the round has not yet 
ended.
    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 placed 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 or 
proactive waivers will not keep the auction open.

[[Page 3904]]

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. It is important for bidders to 
understand that applying a waiver is irreversible. Once a bidder 
submits a proactive waiver, the bidder cannot unsubmit the waiver even 
if the round has not yet ended.
vi. Auction Stopping Rules
    114. For Auction 91, the Bureaus will employ a simultaneous 
stopping rule approach. A simultaneous stopping rule means that all 
construction permits remain available for bidding until bidding closes 
simultaneously on all construction permits. More specifically, bidding 
will close simultaneously on all construction permits after the first 
round in which no bidder submits any new bids or applies a proactive 
waiver.
    115. As explained in the Auction 91 Procedures Public Notice, the 
Bureaus retain the discretion to exercise any alternative version of 
the simultaneous stopping rule for Auction 91 with or without prior 
announcement during the auction. For example, under Option 1, the 
auction would close for all construction permits after the first round 
in which no bidder applies a waiver or places 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. Under Option 2, the auction would close for all construction 
permits after the first round in which no bidder applies a waiver or 
places any new bids on any construction permit that is not FCC held. 
Thus, absent any other bidding activity, a bidder placing a new bid on 
a construction permit that does not already have a provisionally 
winning bid (an FCC-held construction permit) would not keep the 
auction open under this modified stopping rule. Under Option 3, the 
auction would close using a modified version of the simultaneous 
stopping rule that combines Option 1 and Option 2. Under Option 4, the 
auction would end after a specified number of additional rounds. If the 
Bureaus invoke this special stopping rule, it will accept bids in the 
specified final round(s) and the auction will close. Under Option 5, 
the auction would remain open even if no bidder places any new bids or 
applies a waiver. 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 lose bidding 
eligibility or use a waiver.
vii. Auction Delay, Suspension, or Cancellation
    116. The Bureaus, by public notice or by announcement during the 
auction, may delay, suspend, or cancel the auction in the event of 
natural disaster, technical obstacle, administrative or weather 
necessity, evidence of an auction security breach or unlawful bidding 
activity, or for any other reason that affects the fair and efficient 
conduct of competitive bidding. In such cases, the Bureaus, in their 
sole discretion, may elect to resume 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 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
    117. 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.
    118. 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, the amount of time between rounds, or the number of 
rounds per day, depending upon bidding activity and other factors.
ii. Reserve Price and Minimum Opening Bids
    119. There will be no reserve price for the construction permits 
offered in Auction 91. After consideration of one commenter's request 
for a reduction of the proposed minimum opening bid for the FM station 
construction permit for Blanket, Texas, Channel 284A, the Bureaus 
adopted a minimum opening bid for MM-FM837-A, Blanket, Texas, of 
$7,500. After further consideration of the specific circumstances 
concerning the FM station construction permit at Charlo, Montana, 
Channel 251C3, as presented by a second commenter, the Bureaus adopted 
a minimum opening bid of $5,000 for MM-FM808-C3, Charlo, Montana.
    120. Another commenter contended that generally the minimum opening 
bids for re-auctioned allotments are too high, and that those 
allotments that were unsold in previous auctions should all be assigned 
a uniform minimum opening bid of $1,000. Similarly, a fourth commenter 
suggests an across-the-board decrease of 75 percent of the minimum 
opening bids proposed in the Auction 91 Comment Public Notice. The 
Bureaus declined to adopt for minimum opening bids in this auction 
either the proposed across-the-board 75 percent reduction or the 
proposed uniform minimum bid amount for all permits because those 
proposals do not take into account the various factors that were used 
in developing these amounts.
    121. The specific minimum opening bid amounts adopted by the 
Bureaus for the construction permits available in Auction 91 are set 
forth in Attachment A of the Auction 91 Procedures Public Notice.
iii. Bid Amounts
    122. In each round of Auction 91, eligible bidders will be able to 
place a bid on a given construction permit in any of up to nine 
different amounts, if the bidder has sufficient eligibility to place a 
bid on the particular construction permit. The FCC Auction System 
interface will list the nine acceptable bid amounts for each 
construction permit.
    123. The first of the acceptable bid amounts is called the minimum 
acceptable bid amount. The minimum acceptable bid amount for a 
construction permit will be equal to its minimum opening bid amount 
until there is a provisionally winning bid on the construction permit. 
After there is a provisionally winning bid for a permit, the minimum 
acceptable bid amount will be a percentage higher. That is, the minimum 
acceptable bid amount will be calculated by multiplying the 
provisionally winning bid amount times one plus the minimum acceptable 
bid percentage. For example, if the minimum acceptable bid percentage 
is 10 percent, the minimum acceptable bid amount will equal 
(provisionally winning bid amount) * (1.10), rounded.
    124. The Bureaus will begin the auction with a minimum acceptable 
bid percentage of 10 percent. The eight additional bid amounts are 
calculated using the minimum acceptable bid amount and a bid increment 
percentage.

[[Page 3905]]

The Bureaus will begin the auction with a bid increment percentage of 5 
percent. The first additional acceptable bid amount equals the minimum 
acceptable bid amount times one plus the bid increment percentage, 
rounded. With a bid increment percentage is 5 percent, the calculation 
is (minimum acceptable bid amount) * (1 + 0.05), rounded, or (minimum 
acceptable bid amount) * 1.05, 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) * 1.10, 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) * 1.15, rounded; etc. The Bureaus will round the 
results of these calculations using the standard rounding procedures 
for auctions. The Bureaus retain the discretion to change the minimum 
acceptable bid amounts, the minimum acceptable bid percentage, the bid 
increment percentage, and the number of acceptable bid amounts if the 
Bureaus determine that circumstances so dictate. Further, the Bureaus 
retain the discretion to do so on a construction permit-by-construction 
permit basis. The Bureaus also retain the discretion to limit (a) the 
amount by which a minimum acceptable bid for a construction permit may 
increase compared with the corresponding provisionally winning bid, and 
(b) the amount by which an additional bid amount may increase compared 
with the immediately preceding acceptable bid amount. For example, the 
Bureaus could set a $10,000 limit on increases in minimum acceptable 
bid amounts over provisionally winning bids. Thus, if calculating a 
minimum acceptable bid using the minimum acceptable bid percentage 
results in a minimum acceptable bid amount that is $12,000 higher than 
the provisionally winning bid on a construction permit, the minimum 
acceptable bid amount would instead be capped at $10,000 above the 
provisionally winning bid. If the Bureaus exercise this discretion, 
they will alert bidders by announcement in the FCC Auction System 
during the auction.
iv. Provisionally Winning Bids
    125. 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.
    126. The Bureaus will 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). The FCC Auction System will assign a random number 
to each bid upon submission. The tied bid with the highest random 
number wins the tiebreaker, and becomes the provisionally winning bid. 
Bidders, regardless of whether they hold a provisionally winning bid, 
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 provisionally winning bid.
v. Bidding
    127. 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 91. Telephonic bid assistants are required to 
use a script when entering bids placed by telephone. Telephonic bidders 
were reminded to allow sufficient time to bid by placing their calls 
well in advance of the close of a round. The length of a call to place 
a telephonic bid may vary; applicants should allow a minimum of ten 
minutes.
    128. 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.
    129. 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[supreg] token 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.
    130. In each round, eligible bidders will be able to place bids on 
a given construction permit in any of up to nine pre-defined bid 
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 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.
    131. 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.
    132. During a round, an eligible 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. If a bidder submits multiple bids for the same 
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 bids do not count towards the bidder's current 
activity.
vi. Bid Removal and Bid Withdrawal
    133. In Auction 91, each bidder has the option of removing any bids 
placed in a round provided that such bids are removed before the close 
of that bidding 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.
    134. In the Auction 91 Comment Public Notice, the Bureaus proposed 
to prohibit bidders from withdrawing any bids after the round in which 
the bids were placed has closed. The Bureaus declined to adopt one 
commenter's proposal to allow, on a case-by-case basis, a bidder in 
this auction to withdraw a bid where the bidder has a legitimate reason 
and is not encouraging unethical process that would result in personal 
gains for the bidder or disqualifying of eligible bidders.
    135. The Bureaus will prohibit bid withdrawals in Auction 91. 
Bidders are cautioned to select bid amounts carefully because no bid 
withdrawals will be allowed in Auction 91, even if

[[Page 3906]]

a bid was mistakenly or erroneously made.
vii. Round Results
    136. Reports reflecting bidders' identities for Auction 91 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.
    137. Bids placed during a round will not be made public until the 
conclusion of that round. After a round closes, the Bureaus will 
compile and post for public access reports of all bids placed, current 
provisionally winning bids, new minimum acceptable bid amounts for the 
following round, whether the construction permit is FCC held, and 
bidder eligibility status (bidding eligibility and activity rule 
waivers), and post the reports for public access.
viii. Auction Announcements
    138. The Commission will use auction announcements to report 
necessary information such as schedule changes. All auction 
announcements will be available by clicking a link in the FCC Auction 
System.

V. Post-Auction Procedures

    139. Shortly after bidding has ended, the Commission will issue a 
public notice declaring the auction closed, identifying the winning 
bidders, and establishing the deadlines for submitting down payments, 
final payments, and the long-form applications (FCC Forms 301).

A. Down Payments

    140. Within ten business days after release of the auction closing 
public 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 91 to 20 percent of the net 
amount of its winning bids (gross bids less any applicable new entrant 
bidding credits).

B. Final Payments

    141. Each winning bidder will be required to submit the balance of 
the net amount of its winning bids within ten business days after the 
applicable deadline for submitting down payments.

C. Long-Form Application (FCC Form 301)

    142. The Commission's rules currently provide that within thirty 
days after release of the auction closing notice, winning bidders must 
electronically submit a properly completed long-form application (FCC 
Form 301, Application for Construction Permit for Commercial Broadcast 
Station), and required exhibits for each construction permit won 
through Auction 91. Winning bidders claiming new entrant status must 
include an exhibit demonstrating their eligibility for the bidding 
credit. Further instructions on these and other filing requirements 
will be provided to winning bidders in the auction closing public 
notice.

D. Default and Disqualification

    143. 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 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. The Bureaus set the additional default payment for 
this auction at twenty percent of the applicable bid.
    144. Finally, 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

    145. After the auction, applicants that are not winning bidders or 
are winning bidders whose upfront payment exceeded the total net amount 
of their winning bids may be entitled to a refund of some or all of 
their upfront payment. 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. Bidders that drop out of 
the auction completely (have exhausted all of their activity rule 
waivers and have no remaining bidding eligibility) may request a refund 
of their upfront payments before the close of the auction.

Federal Communications Commission.
Gary D. Michaels,
Deputy Chief, Auction and Spectrum Access Division, WTB.
[FR Doc. 2011-1375 Filed 1-20-11; 8:45 am]
BILLING CODE 6712-01-P