[Federal Register Volume 78, Number 7 (Thursday, January 10, 2013)]
[Notices]
[Pages 2260-2273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-00347]


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FEDERAL COMMUNICATIONS COMMISSION

[AU Docket No. 12-239; DA 12-1865]


Auction of FM Broadcast Construction Permits Rescheduled for 
April 23, 2013; Notice of Filing Requirements, Minimum Opening Bids, 
Upfront Payments, and Other Procedures for Auction 94

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: This document announces the auction of certain FM broadcast 
construction permits. This document is intended to familiarize 
prospective applicants with the procedures and other requirements for 
participation in Auction 94.

DATES: Applications to participate in Auction 94 must be filed prior to 
6:00 p.m. Eastern Time (ET) on February 6, 2013. Bidding for 
construction permits in Auction 94 is scheduled to begin on April 23, 
2013.

FOR FURTHER INFORMATION CONTACT: Wireless Telecommunications Bureau, 
Auctions and Spectrum Access Division: For auction legal questions: 
Howard Davenport at (202) 418-0660; for general auction questions: Jeff 
Crooks at (202) 418-0660 or Linda Sanderson at (717) 338-2868. Media 
Bureau, Audio

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Division: For FM service rule questions: Lisa Scanlan or Tom Nessinger 
at (202) 418-2700.

SUPPLEMENTARY INFORMATION: This is a summary of the Auction 94 
Procedures Public Notice released on November 21, 2012. The complete 
text of the Auction 94 Procedures Public Notice, including an 
attachment and related Commission documents, is available for public 
inspection and copying from 8:00 a.m. to 4:30 p.m. Eastern Time (ET) 
Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on Fridays 
in the FCC Reference Information Center, 445 12th Street SW., Room CY-
A257, Washington, DC 20554. The Auction 94 Procedures Public Notice and 
related Commission documents also may be purchased from the 
Commission's duplicating contractor, Best Copy and Printing, Inc. 
(BCPI), 445 12th Street SW., Room CY-B402, Washington, DC 20554, 
telephone 202-488-5300, fax 202-488-5563, or you may contact BCPI at 
its Web site: http://www.BCPIWEB.com. When ordering documents from 
BCPI, please provide the appropriate FCC document number, for example, 
DA 12-1865. The Auction 94 Procedures Public Notice and related 
documents also are available on the Internet at the Commission's Web 
site: http://wireless.fcc.gov/auctions/94/, or by using the search 
function for AU Docket No. 12-1865 on the Commission's Electronic 
Comment Filing System (ECFS) web page at http://www.fcc.gov/cgb/ecfs/.

I. General Information

A. Introduction

    1. On September 11, 2012, the Wireless Telecommunications and Media 
Bureaus (the Bureaus) released a public notice seeking comment on 
competitive bidding procedures to be used in Auction 94. Six parties 
submitted seven comments in response to the Auction 94 Comment Public 
Notice, 77 FR 60690, October 4, 2012.
    2. On November 21, 2012, The Bureaus released a public notice that 
established the procedures and minimum opening bid amounts for the 
upcoming auction of certain FM broadcast construction permits and 
announced a revised auction schedule. This auction, which is designated 
as Auction 94, is now scheduled to start on April 23, 2013. 
Construction Permits in Auction 94
    3. Auction 94 will offer 112 construction permits in the FM 
broadcast service. The construction permits to be auctioned, which are 
listed in Attachment A of the Auction 94 Procedures Public Notice, are 
for 112 new FM allotments, including 25 construction permits that were 
offered but not sold or were defaulted upon in prior auctions. These 
construction permits are for vacant FM allotments, reflecting FM 
channels assigned to the Table of FM Allotment.
    4. Attachment A to the Auction 94 Procedures Public Notice reflects 
changes to the list of construction permits that were proposed for this 
auction. The Bureaus have removed five construction permits from the 
list of construction permits that were proposed for inclusion in this 
auction. The Auction 94 Comment Public Notice explains the Bureaus' 
rationale for removing certain permits and not offering those five 
permits in Auction 94.
    5. Applicants may apply for any vacant FM allotment listed in 
Attachment A of the Auction 94 Procedures Public Notice. When two or 
more short-form applications (FCC Form 175) specifying the same FM 
allotment are accepted for filing, mutual exclusivity exists for 
auction purposes and that construction permit must 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 permit.

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 FM broadcast 
service rules contained in 47 CFR 73.201-73.333 and 73.1001-73.5009. 
Prospective bidders must also be familiar with the broadcast auctions 
and competitive bidding rules contained in 47 CFR 1.2101-1.2112 and 
73.5000-73.5009. All bidders must also be thoroughly familiar with the 
procedures, terms and conditions contained in the Auction 94 Procedures 
Public Notice and other public notices and orders referenced in that 
Public Notice. 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 its 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
    7. To ensure the competitiveness of the auction process, 47 CFR 
1.2105(c) of the Commission's rules 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
    8. The prohibition on certain communications in 47 CFR 1.215(c) 
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. For the FM service, the market 
designation is the particular vacant FM allotment (e.g., Harrison, 
Michigan, Channel 280A, MM-FM664A). In Auction 94, this rule would 
apply to applicants designating any of the same FM allotments on the 
short-form application.
    9. For purposes of this prohibition, 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

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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 conveyed to the other applicant, and, absent a 
disclosed bidding agreement, an apparent violation of 47 CFR 1.2105(c) 
occurs.
    10. 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 relating to any competing 
applicant's bids or bidding strategies.
    11. 47 CFR 1.2105(c) permits a non-controlling interest holders to 
obtain interests in more than one competing applicant without violating 
the rule 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. Auction 94 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. 
Similarly, if the authorized bidders are different individuals employed 
by the same organization (e.g., law firm, 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 the applicant and its bidders will comply 
with 47 CFR 1.2105(c).
b. Prohibition Applies Until Down Payment Deadline
    13. 47 CFR 1.2105(c)'s prohibition on certain communications begins 
at the short-form application filing deadline and ends at the down 
payment deadline after the auction closes, which will be announced in a 
future public notice.
c. Prohibited Communications
    14. Applicants 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 communication about an applicant's own 
bids or bidding strategy, it also prohibits 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, each applicant must remain vigilant so as not to directly 
or indirectly communicate information that affects, or could affect, 
bids, bidding strategy, or the negotiation of settlement agreements.
    15. Applicants are cautioned that the Commission remains vigilant 
about prohibited communications taking place in other situations, 
including communications regarding capital calls or requests for 
additional funds in support of bids or bidding strategies. An applicant 
also may not use the Commission's bidding system to disclose its 
bidding strategy. Applicants also should use caution in their dealings 
with other parties, such as members of the press, financial analysts, 
or others who might become conduits for the communication of prohibited 
bidding information. Similarly, an applicant's public statement of 
intent not to participate in Auction 94 bidding could also violate the 
rule. Applicants are hereby placed on notice that public disclosure of 
information relating to bids, or bidding strategies, or to post auction 
market structures may violate 47 CFR 1.2105(c).
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. Applicants must identify 
in their short-form applications all parties with whom they have 
entered into any agreements, arrangements, or understandings of any 
kind relating to the construction permits being auctioned, including 
any agreements relating to post-auction market structure.
    17. 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 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.
    18. 47 CFR 1.2105(c) does not prohibit non-auction-related business 
negotiations among auction applicants. However, certain discussions or 
exchanges could touch upon impermissible subject matters because they 
may convey pricing information and bidding strategies. Such subject 
areas include, but are not limited to, issues such as management, 
sales, local marketing agreements, rebroadcast agreements, and other 
transactional agreements.
e. Section 1.2105(c) Certification
    19. By electronically submitting a short-form application, each 
applicant in Auction 94 certifies its compliance with 47 CFR 1.2105(c) 
and 73.5002. In particular, an applicant must certify under penalty of 
perjury it has not entered and will not enter into any explicit or 
implicit agreements, arrangements or understandings of any kind with 
any parties, other than those identified in the application, regarding 
the amount of the applicant's bids, bidding strategies, or the 
particular construction permits on which it will or will not bid. 
However, the Bureaus caution 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. Any applicant found to 
have violated 47 CFR 1.2105(c) may be subject to sanctions.
f. Duty To Report Prohibited Communications
    20. 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.
    21. In addition, 47 CFR 1.65 requires an auction applicant to 
notify the Commission of any substantial change to the information or 
certifications included in the 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).
    22. 47 CFR 1.65(a) and 1.2105(c) require each applicant in 
competitive

[[Page 2263]]

bidding proceedings to furnish additional or corrected information 
within five days of a significant occurrence, or to amend its short-
form application no more than five days after the applicant become 
aware of the need for amendment.
g. Procedure for Reporting Prohibited Communications
    23. 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.
    24. 47 CFR1.2105(c) requires parties to file only a single report 
concerning a prohibited 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. Any reports 
required by 47 CFR 1.2105(c) must be filed consistent with the 
instructions set forth in the Auction 94 Procedures Public Notice. For 
Auction 94, such reports must be filed with the Chief of the Auctions 
and Spectrum Access Division, Wireless Telecommunications Bureau, by 
the most expeditious means available. Any such report should be 
submitted by email to the following email address: [email protected]v. 
If you choose instead to submit a report in hard copy, any such report 
must be delivered only to: Margaret W. Wiener, Chief, Auctions and 
Spectrum Access Division, Wireless Telecommunications Bureau, Federal 
Communications Commission, 445 12th Street SW., Room 6423, Washington, 
DC 20554.
    25. 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 by 
following the procedures specified in 47 CFR 0.459 of the Commission's 
rules. Such parties also are encouraged to coordinate with the Auctions 
and Spectrum Access Division staff about the procedures for submitting 
such reports.
h. Winning Bidders Must Disclose Terms of Agreements
    26. Each applicant that is a winning bidder will be required to 
disclose in its long-form applications the specific terms, conditions, 
and parties involved in any agreement it has entered into. This applies 
to 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. Failure to comply with the Commission's 
rules can result in enforcement action.
i. Additional Information Concerning Rule Prohibiting Certain 
Communications
    27. 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 94 Procedures Public Notice. These 
documents are available on the Commission's auction web page
j. Antitrust Laws
    28. Regardless of compliance with the Commission's rules, 
applicants 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.
    29. To the extent the Commission becomes aware of specific 
allegations that suggest that violations of the federal antitrust laws 
may have occurred, the Commission may refer such allegations to the 
United States Department of Justice for investigation. If an applicant 
is found to have violated the antitrust laws or the Commission's rules 
in connection with its participation in the competitive bidding 
process, it may be subject to forfeiture of its upfront payment, down 
payment, or full bid amount and may be prohibited from participating in 
future auctions, among other sanctions.
iii. Due Diligence
    30. Each potential bidder is 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. Each bidder is responsible 
for assuring that, if it wins a construction permit, it 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 opportunity to become an FCC 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.
    31. An applicant should perform its due diligence research and 
analysis before proceeding, as it would with any new business venture. 
Each potential bidder is strongly encouraged to review all underlying 
Commission orders, such as the specific order amending the FM Table of 
Allotments and allotting the FM channel(s) on which it plans to bid. An 
order adopted in an FM allotment rulemaking proceeding may include 
information unique to the allotment such as site restrictions or 
expense reimbursement requirements. Each potential bidder should 
perform technical analyses or refresh their previous analyses to assure 
itself that, should it become a winning bidder for any Auction 94 
construction permit, it will be able to build and operate facilities 
that will fully comply with all applicable technical and legal 
requirements. Each applicant should inspect any prospective transmitter 
sites located in, or near, the service area for which it plans to bid, 
confirm the availability of such sites, and familiarize itself with the 
Commission's rules regarding the National Environmental Policy Act at 
47 CFR Chapter 1, Part 1, Subpart I.
    32. Each applicant should conduct its own research prior to Auction 
94 in order to determine the existence of pending administrative or 
judicial proceedings, including pending allocation rulemaking 
proceedings that might affect its decision to participate in the 
auction. Each participant in Auction 94 should continue such research 
throughout the auction. The due diligence considerations mentioned in 
the Auction 94 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 related to its interests.
    33. Pending and future judicial proceedings, as well as 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,

[[Page 2264]]

and applications for review--may relate to particular applicants, 
incumbent permittees, incumbent licensees, or the construction permits 
available in Auction 94. Each prospective applicant is responsible for 
assessing the likelihood of the various possible outcomes and for 
considering the potential impact on construction permits available in 
this auction.
    34. 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 94. Each potential 
bidder is responsible for undertaking 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.
    35. Applicants may research the licensing database for the Media 
Bureau in order to determine which channels are already licensed to 
incumbent licensees or previously authorized to construction 
permittees. Licensing records are contained in the Consolidated Data 
Base System (CDBS) and may be researched on the Internet from http://www.fcc.gov/mb.
    36. 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, it must 
obtain or verify such information from independent sources or assume 
the risk of any incompleteness or inaccuracy in said databases. 
Furthermore, the Commission makes no representations or guarantees 
regarding the accuracy or completeness of information that has been 
provided by incumbent licensees and incorporated into its databases.
iv. Use of Integrated Spectrum Auction System
    37. Bidders will be able to participate in Auction 94 over the 
Internet using the Commission's web-based Integrated Spectrum Auction 
System (ISAS or FCC Auction System). The Commission makes no warranty 
whatsoever with respect to the FCC Auction System. In no event shall 
the Commission, or any of its officers, employees, or agents, be liable 
for any damages whatsoever (including, but not limited to, loss of 
business profits, business interruption, loss of business information, 
or any other loss) arising out of or relating to the existence, 
furnishing, functioning, or use of the FCC Auction System that is 
accessible to qualified bidders in connection with this auction. 
Moreover, no obligation or liability will arise out of the Commission's 
technical, programming, or other advice or service provided in 
connection with the FCC Auction System.
v. Environmental Review Requirements
    38. 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, 47 CFR 1.1301-1.1319, for 
each such facility. These environmental rules require, among other 
things, that the permittee or licensee consult with expert agencies 
having environmental responsibilities, including the U.S. Fish and 
Wildlife Service, the State Historic Preservation Office, the U.S. Army 
Corps of Engineers, and the Federal Emergency Management Agency 
(through the local authority with jurisdiction over floodplains). In 
assessing the effect of facility construction on historic properties, 
the permittee or licensee must follow the provisions of the FCC's 
Nationwide Programmatic Agreement Regarding the Section 106 National 
Historic Preservation Act Review Process. The permittee or licensee 
must prepare environmental assessments for any facility that may have a 
significant impact in or on wilderness areas, wildlife preserves, 
threatened or endangered species, or designated critical habitats, 
historical or archaeological sites, Indian religious sites, 
floodplains, and surface features. In addition, the permittee or 
licensee must prepare environmental assessments for facilities that 
include high intensity white lights in residential neighborhoods or 
excessive radio frequency emission.

C. Auction Specifics

i. Bidding Methodology
    39. The bidding methodology for Auction 94 will be a simultaneous 
multiple round format. The Commission will conduct this auction over 
the Internet using the FCC Auction System. Qualified bidders are 
permitted to bid electronically via the Internet or by telephone using 
the telephonic bidding option. All telephone calls are recorded.
ii. Pre-Auction Dates and Deadlines
    40. The following dates and deadlines apply:

Auction Tutorial Available (via Internet).  January 28, 2013.
Short-Form Application (FCC Form 175)
    Filing Window Opens...................  January 28, 2013; 12:00 noon ET.
Short-Form Application (FCC Form 175)
    Filing Window Deadline................  February 6, 2013; prior to 6:00 p.m. ET.
    Upfront Payments (via wire transfer)..  March 18, 2013; 6:00 p.m. ET.
    Mock Auction..........................  April 19, 2013.
    Auction Begins........................  April 23, 2013.
 

iii. Requirements for Participation
    41. Those wishing to participate in this auction must: (1) Submit a 
short-form application (FCC Form 175) electronically prior to 6:00 p.m. 
ET, on February 6, 2013, following the electronic filing procedures set 
forth in Attachment B to the Auction 94 Procedures Public Notice; (2) 
Submit a sufficient upfront payment and an FCC Remittance Advice Form 
(FCC Form 159) by 6:00 p.m. ET, on March 18, 2013, following the 
procedures and instructions set forth in Attachment C to the Auction 94 
Procedures Public Notice; and (3) Comply with all provisions outlined 
in the Auctions 94 Procedures Public Notice and applicable Commission 
rules.

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

A. General Information Regarding Short-Form Applications

    42. An application to participate in an FCC auction, referred to as 
a short-form application or FCC Form 175, provides information used to 
determine whether the applicant is legally, technically, and 
financially qualified to participate in

[[Page 2265]]

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, parties desiring to participate in the 
auction must file a streamlined, short-form application 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 it has the legal, 
technical and financial resources to participate in the auction and to 
construct and operate an FM station if it becomes a licensee as a 
result of its participation in this auction. Eligibility to participate 
in bidding is based on the applicant's short-form application and 
certifications, and on its upfront payment. In the second phase of the 
process, each winning bidder must file a more comprehensive long-form 
application.
    43. Every entity and individual seeking a construction permit 
available in Auction 94 must file a short-form application 
electronically via the FCC Auction System prior to 6:00 p.m. ET on 
February 6, 2013, following the procedures prescribed in Attachment B 
to the Auction 94 Procedures Public Notice. If an applicant claims 
eligibility for a bidding credit, the information provided in its FCC 
Form 175 will be used to determine whether the applicant is eligible 
for the claimed bidding credit. Applicants filing a short-form 
application are subject to the Commission's anti-collusion rules 
beginning at the deadline for filing.
    44. 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 94 Procedures Public Notice and 
should consult the Commission's rules to ensure that all the 
information required is included within their short-form application.
    45. 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.
    46. 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

    47. 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 in identifying construction permits of interest 
that will be available in Auction 94, the FCC Auction System includes a 
filtering mechanism that allows an applicant to filter the ``Eligible 
Permits'' list. Selections for one or more of the filter criteria can 
be made and the system will produce a list of construction permits 
satisfying the specified criteria. Any or all of the construction 
permits in the filtered results may be selected. Applicants will also 
be able to select construction permits from one set of filtered results 
and then filter on different criteria to select additional construction 
permits.
    48. Applicants interested in participating in Auction 94 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. Construction permit selections cannot be 
changed after the short-form application filing deadline. The FCC 
Auction System will not accept bids on construction permits that were 
not selected on the applicant's short-form application.

C. New Entrant Bidding Credit

    49. 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 94, the 
bidder's attributable interests and, thus, its maximum new entrant 
bidding credit eligibility are determined as of the short-form 
application filing deadline. An applicant intending to divest a media 
interest or make any other ownership changes, such as resignation of 
positional interests, in order to avoid attribution for purposes of 
qualifying for the New Entrant Bidding Credit must have consummated 
such divestment transactions or have completed such ownership changes 
by no later than the short-form filing deadline. Each prospective 
bidder is 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.
    50. 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.
    51. 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.
    52. Applicants are also reminded that, by the New Entrant Bidding 
Credit Reconsideration Order, the Commission further refined the 
eligibility standards for the New Entrant Bidding Credit, judging it 
appropriate to attribute the media interests held by very substantial 
investors in, or creditors of, an applicant claiming new entrant 
status. Specifically, the attributable mass media interests held by an 
individual or entity with an equity and/or debt interest in an 
applicant shall be attributed to that applicant for purposes of 
determining its eligibility for the New Entrant Bidding Credit, if the 
equity and debt interests, in the aggregate, exceed 33 percent of the 
total asset value of the applicant, even if such an interest is non-
voting.
    53. In the Diversity Order, 73 FR 28400, May 16, 2008, the 
Commission relaxed the equity/debt plus (EDP) attribution standard, to 
allow for higher investment opportunities in entities meeting the 
definition of eligible entities as set forth in 47 CFR 73.3555 Note 
2(i). Consistent with a United States Court of Appeals decision issued 
in July 2011, the relaxed EDP rule for eligible entities as the basis 
for the New Entrant Bidding Credit will be unavailable in Auction 94.

[[Page 2266]]

    54. 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 applicant's 
other mass media interests in determining its eligibility for a New 
Entrant Bidding Credit. A medium of mass communications is defined in 
section 73.5008(b). Full service noncommercial educational stations, on 
both reserved and non-reserved channels, are included among media of 
mass communications as defined in section 73.5008(b).

D. Application Requirements

    55. In addition to the ownership information required pursuant to 
47 CFR 1.2105 and 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 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.
i. Bidding Credits
    56. 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 offered in this 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 any applicant-specified preferred 
site coordinates.
    57. 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.

E. Ownership Disclosure Requirements

    58. For purposes of determining eligibility to participate in a 
broadcast auction, all applicants must comply with the uniform Part 1 
ownership disclosure standards and provide information required by 47 
CFR 1.2105 and 1.2112 . Specifically, in completing the short-form 
application, applicants will be required to fully disclose information 
on the real party- or parties-in-interest and ownership structure of 
the applicant, 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 of 
the Commission's rules. Each applicant is responsible for ensuring that 
information submitted in its short-form application is complete and 
accurate.
    59. In certain circumstances, an applicant's most current ownership 
information on file with the Commission, if in an electronic format 
compatible with the short-form application (FCC Form 175) (such as 
information submitted in an on-line FCC Form 602 or in an FCC Form 175 
filed for a previous auction using the FCC Auction System), will 
automatically be entered into their short-form application. Each 
applicant must carefully review any information automatically entered 
to confirm that it is complete and accurate as of the deadline for 
filing the short-form application. Any information that needs to be 
corrected or updated must be changed directly in the short-form 
application.

F. Provisions Regarding Former and Current Defaulters

    60. Current defaulters or delinquents are not eligible to 
participate in Auction 94, but former defaulters or delinquents can 
participate so long as they are otherwise qualified and, make upfront 
payments that are fifty percent more than would otherwise be necessary. 
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.
    61. 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

[[Page 2267]]

monetary forfeitures, license revocations, exclusion from participation 
in future auctions, and/or criminal prosecution.
    62. Applicants are encouraged to review the Bureaus' previous 
guidance on default and delinquency disclosure requirements in the 
context of the short-form application process. For example, it has been 
determined that, to the extent that Commission rules permit late 
payment of regulatory or application fees accompanied by late fees, 
such debts will become delinquent for purposes of 47 CFR 1.2105(a) and 
1.2106(a) only after the expiration of a final payment deadline. 
Therefore, with respect to regulatory or application fees, the 
provisions of 47 CFR 1.2105(a) and 1.2106(a) regarding default and 
delinquency in connection with competitive bidding are limited to 
circumstances in which the relevant party has not complied with a final 
Commission payment deadline. Parties are also encouraged to consult 
with the Wireless Telecommunications Bureau's Auctions and Spectrum 
Access Division staff if they have any questions about default and 
delinquency disclosure requirements.
    63. 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 its obligations under the Debt 
Collection Improvement Act of 1996, which governs the collection of 
debts owed to the United States. Under the red light rule, applications 
and other requests for benefits filed by parties that have outstanding 
debts owed to the Commission will not be processed. In the same 
rulemaking order, the Commission explicitly declared, however, that its 
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 its 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.
    64. Applicants are reminded 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.
    65. Moreover, prospective applicants in Auction 94 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.

G. Optional Applicant Status Identification

    66. 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.

H. Noncommercial Educational Status Election

    67. Applications for noncommercial educational (NCE) FM stations on 
nonreserved spectrum, filed during an FM filing window, will be 
returned as unacceptable for filing if mutually exclusive with any 
application for a commercial station. Accordingly, if an FCC Form 175 
filed during the Auction 94 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 NCE application will be returned as unacceptable for filing. For 
this reason, each prospective applicant in this auction should consider 
carefully if they wish to propose NCE operation for any FM station 
acquired in this auction. This NCE election cannot be reversed after 
the initial application filing deadline.

I. Minor Modifications to Short-Form Applications

    68. After the deadline for filing initial applications, an Auction 
94 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, and the 
application will consequently be dismissed. If an applicant's short-
form application is dismissed, the applicant would remain subject to 
the communication prohibitions of 47 CFR 1.2105(c) until the down 
payment deadline.
    69. 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. For the change to be submitted and considered by the 
Commission, be sure to click on the SUBMIT button.
    70. An applicant cannot use the FCC Auction System outside of the 
initial and resubmission filing windows to make changes to its short-
form application for 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 the 
FCC Auction System once it is available. Moreover, after the filing 
window has closed, the system 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. Any letter describing changes to an 
applicant's short-form application must be submitted by email to 
[email protected]v. 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.
    71. Applicants must not submit application-specific material 
through the Commission's Electronic Comment

[[Page 2268]]

Filing System, which was used for submitting comments regarding Auction 
94.

J. Maintaining Current Information in Short-Form Applications

    72. 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. If an amendment reporting 
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 short-form filing deadline, applicants may 
make only minor changes to their applications. For changes to be 
submitted and considered by the Commission, be sure to click on the 
SUBMIT button in the FCC Auction System. In addition, an applicant 
cannot update its short-form application using the FCC Auction System 
after the initial and resubmission filing windows close. If information 
needs to be submitted pursuant to 47 CFR 1.65 after these windows 
close, a letter briefly summarizing the changes must be submitted by 
email to [email protected]v. This email must include a subject or 
caption referring to Auction 94 and the name of the applicant.

III. Pre-Auction Procedures

A. Online Auction Tutorial--Available January 28, 2013

    73. On Monday, January 28, 2013, an educational auction tutorial 
will be available on the Auction 94 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. Once posted, this tutorial will remain accessible for 
reference prior to Auction 94.

B. Short-Form Applications--Due Prior to 6:00 p.m. ET on February 6, 
2013

    74. In order to be eligible to bid in this auction, applicants must 
first follow the procedures set forth in Attachment B to the Auction 94 
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 prior to 6:00 p.m. ET on February 6, 
2013. Late applications will not be accepted. No application fee is 
required, but an applicant must submit a timely upfront payment to be 
eligible to bid.
    75. Applications may generally be filed at any time beginning at 
noon ET on January 28, 2013, until the filing window closes at 6:00 
p.m. ET on February 6, 2013. Applicants are strongly encouraged to file 
early and are responsible for allowing adequate time for filing their 
applications. Applications can be updated or amended multiple times 
until the filing deadline on February 6, 2013.
    76. An applicant must always click on the SUBMIT button on the 
``Certify & 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 by Commission staff. 
Additional information about accessing, completing, and viewing the FCC 
Form 175 is included in Attachment B of the Auction 94 Procedures 
Public Notice. FCC Auctions Technical Support is available at (877) 
480-3201, option nine; (202) 414-1250; or (202) 414-1255 (text 
telephone (TTY)); hours of service are Monday through Friday, from 8:00 
a.m. to 6:00 p.m. ET. In order to provide better service to the public, 
all calls to Technical Support are recorded.

C. Application Processing and Minor Corrections

    77. 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 that are complete; (2) those that are rejected; 
and (3) those that are incomplete or deficient because of minor defects 
that may be corrected. The public notice will include the deadline for 
resubmitting corrected applications.
    78. 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.
    79. After the application filing deadline on February 6, 2013, 
applicants can make only minor corrections to their applications. They 
will not be permitted to make major modifications (e.g., change 
construction permit selection, change control of the applicant, change 
the certifying official, claim eligibility for a higher percentage of 
bidding credit, or change identification of the application's proposed 
facilities as NCE).
    80. Commission staff will communicate only with an applicant's 
contact person or certifying official, as designated on the 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 email to [email protected]v.

D. Upfront Payments--Due March 18, 2013

    81. In order to be eligible to bid in this auction, an upfront 
payment must be submitted and 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 U.S. Bank in St. Louis, 
Missouri. All upfront payments must be made as instructed in the 
Auction 94 Procedures Public Notice and must be received in the proper 
account at U.S. Bank before 6:00 p.m. ET on March 18, 2013.
i. Making Upfront Payments by Wire Transfer
    82. Wire transfer payments must be received before 6:00 p.m. ET on 
March 18, 2013. No other payment method is acceptable. To avoid 
untimely payments, applicants should discuss arrangements (including 
bank closing schedules) with their bankers several days before they 
plan to make the wire transfer, and allow sufficient time for the 
transfer to be initiated and completed before the deadline. 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, 
write Wire Transfer--

[[Page 2269]]

Auction Payment for Auction 94. In order to meet the upfront payment 
deadline, an applicant's payment must be credited to the Commission's 
account for Auction 94 before the deadline.
    83. Each applicant is responsible for ensuring timely submission of 
its upfront payment and for timely filing of an accurate and complete 
FCC Remittance Advice Form (FCC Form 159). An applicant should 
coordinate with its financial institution well ahead of the due date 
regarding its wire transfer 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 its 
upfront payment was timely received and that it was deposited into the 
proper account.
    84. All payments must be in U.S. dollars. All payments must be made 
by wire transfer. Upfront payments for Auction 94 go to a lockbox 
number different from the lockbox used in previous FCC auctions. 
Failure to deliver a sufficient upfront payment as instructed by the 
March 18, 2013, deadline will result in dismissal of the short-form 
application and disqualification from participation in the auction.
ii. FCC Form 159
    85. An accurate and complete FCC Remittance Advice Form (FCC Form 
159, Revised 2/03) must be faxed to U.S. Bank to accompany each upfront 
payment. Proper completion of this form is critical to ensuring correct 
crediting of upfront payments. Detailed instructions for completion of 
FCC Form 159 are included in Attachment C of the Auction 94 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 it must be filed with 
U.S. Bank by fax.
iii. Upfront Payments and Bidding Eligibility
    86. 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 would determine a bidder's initial 
bidding eligibility, the maximum number of bidding units on which a 
bidder may place bids. In order to bid on a 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 
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 they wish to place bids 
and hold provisionally winning bids in any given round. The total 
upfront payment does not affect the total dollar amount the bidder may 
bid on any given construction permit.
    87. The specific upfront payment amounts and bidding units for each 
construction permit are set forth in Attachment A of the Auction 94 
Procedures Public Notice.
    88. 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.
    89. If an applicant is a former defaulter, 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.

E. Applicant's Wire Transfer Information for Purposes of Refunds of 
Upfront Payments

    90. 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.) Specific instructions were provided in 
the Auction 94 Procedures Public Notice for the submission of wire 
transfer instructions by fax.

F. Auction Registration

    91. 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.
    92. 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[supreg] tokens that will be required to place bids, 
the ``Integrated Spectrum Auction System (ISAS) Bidder's Guide,'' and 
the Auction Bidder Line phone number.
    93. Qualified bidders that do not receive this registration mailing 
will not be able to submit bids. Therefore, if this mailing is not 
received by noon on Wednesday, April 17, 2013, call the Auctions 
Hotline at (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.
    94. In the event that SecurID[supreg] 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. To request replacement of 
these items, call Technical Support at (877) 480-3201, option nine; 
(202) 414-1250; or (202) 414-1255 (TTY).

G. Remote Electronic Bidding

    95. 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--

[[Page 2270]]

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 94.

H. Mock Auction--April 19, 2013

    96. All qualified bidders will be eligible to participate in a mock 
auction on Friday, April 19, 2013. The mock auction will enable bidders 
to become familiar with the FCC Auction System prior to the auction. 
The Bureaus strongly recommend that all bidders participate in the mock 
auction. Details will be announced by public notice.

IV. Auction

    97. The first round of bidding for Auction 94 will begin on 
Tuesday, April 23, 2013. The initial bidding schedule will be announced 
in a public notice listing the qualified bidders, which is released 
approximately 10 days before the start of the auction.

A. Auction Structure

i. Simultaneous Multiple Round Auction
    98. In Auction 94, all construction permits 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. The Bureaus received no comment on this 
proposal, and this proposal is adopted. 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
    99. The Bureaus will use upfront payments to determine initial 
(maximum) eligibility (as measured in bidding units) for Auction 94. 
The amount of the upfront payment submitted by a bidder determines 
initial bidding eligibility, the maximum number of bidding units on 
which a bidder may be active. As noted earlier, each construction 
permit is assigned a specific number of bidding units as listed in 
Attachment A of the Auction 94 Procedures Public Notice. Bidding units 
assigned to each construction permit do not change as prices rise 
during the auction. Upfront payments are 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.
    100. 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. The Bureaus proposed a 100 percent activity requirement.
    101. The Bureaus declined one commenter's suggestion that they 
should require an upfront payment covering of all the permits selected 
by an applicant in its FCC Form 175. Allowing each applicant to submit 
an upfront payment that covers the maximum number of bidding units on 
which it may wish to be active in any given round affords bidders the 
flexibility to pursue backup strategies--not unlike having an activity 
requirement below 100%.
    102. The Bureaus also chose not to adopt their proposal to have a 
100% activity requirement in response to concerns raised by a 
commenter. Instead, the Bureaus adopt two activity requirements: an 80% 
requirement for the beginning of the auction and a 95% requirement that 
will be used later in the auction. The Bureaus will implement these 
requirements using two ``auction stages.''
    103. When the Bureaus move the auction from Stage One to Stage Two, 
they will first alert bidders by announcement in the bidding system. 
The Bureaus have the discretion to further alter the activity 
requirements before and/or during the auction as circumstances warrant.
iii. Activity Rule Waivers
    104. The Bureaus decided to provide bidders in Auction 94 with 
three activity rule waivers. Use of an activity rule waiver preserves 
the bidder's eligibility despite its 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. 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.
    105. The FCC Auction System assumes that a bidder 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 in which a 
bidder's activity level is below the minimum required unless (1) the 
bidder has no activity rule waivers remaining or (2) the bidder 
overrides the automatic application of a waiver by reducing 
eligibility. If no waivers remain and the activity requirement is not 
satisfied, the FCC Auction System will permanently reduce the bidder's 
eligibility, possibly curtailing or eliminating the ability to place 
additional bids in the auction.
    106. A bidder with insufficient activity may wish to reduce its 
bidding eligibility rather than use an activity rule waiver. If so, the 
bidder 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 it into compliance with the activity rule. 
Reducing eligibility is an irreversible action; once eligibility has 
been reduced, a bidder will not be permitted to regain its lost bidding 
eligibility, even if the round has not yet closed.
    107. Finally, a bidder may apply an activity rule waiver 
proactively as a means to keep the auction open without placing a bid. 
If a proactive waiver is applied (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. A bidder cannot submit a proactive 
waiver after bidding in a round, and applying a proactive waiver will 
preclude it from placing any bids in that round. Applying a waiver is 
irreversible; once a bidder submits a proactive waiver, the bidder 
cannot

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unsubmit the waiver even if the round has not yet ended.
iv. Auction Stopping Rules
    108. For Auction 94, the Bureaus will employ a simultaneous 
stopping rule approach, which means all construction permits remain 
available for bidding until bidding stops simultaneously on every 
construction permit. More specifically, bidding will close on all 
construction permits after the first round in which no bidder submits 
any new bids or applies a proactive waiver.
    109. The Bureaus also sought comment on alternative versions of the 
simultaneous stopping rule for Auction 94. Under Option1, the auction 
would close for all construction permits after the first round in which 
no bidder applies a proactive 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.
    110. 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.
    111. Under Option 3, the auction would close using a modified 
version of the simultaneous stopping rule that combines 1 and 2.
    112. 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), after which the 
auction will close.
    113. 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.
    114. The Bureaus proposed to exercise these options only in certain 
circumstances, for example, where the auction is proceeding unusually 
slowly or quickly, there is minimal overall bidding activity, or it 
appears likely that the auction will not close within a reasonable 
period of time or will close prematurely. Before exercising these 
options, The Bureaus are likely to attempt to change the pace of the 
auction. For example, the Bureaus may adjust the pace of bidding by 
changing the number of bidding rounds per day and/or the minimum 
acceptable bids. The Bureaus retain the discretion to exercise any of 
these options with or without prior announcement during the auction. 
The Bureaus received no comment on these proposals and adopt them for 
Auction 94.
v. Auction Delay, Suspension, or Cancellation
    115. The Bureaus by public notice or by announcement during the 
auction, they 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.

B. Bidding Procedures

i. Round Structure
    116. 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 each day.
    117. 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 change 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
    118. The Bureaus did not propose to establish reserve prices for 
the construction permits in Auction 94. The Bureaus did establish 
minimum opening bids for each construction permit, reasoning that a 
minimum opening bid, which has been used in other auctions, is an 
effective tool for accelerating the competitive bidding process. The 
Bureaus sought comment on the proposed minimum opening bids.
    119. In response to specific concerns raised by commenters 
concerning the Bureaus' proposed minimum opening bid amounts for 
particular permits, the Bureaus adopted a minimum opening bid for MM-
FM1057-A, at Oak Harbor, Washington, of $15,000, a minimum opening bid 
for MM-FM1058-A, at Sedro-Woolley, Washington, of $5,000, and a minimum 
opening bid for MM-FM1059-A, at Sequim, Washington, of $1,500.
    120. For the rest of the construction permits, the Bureaus adopted 
the minimum opening bid amounts proposed in the Auction 94 Comment 
Public Notice. The specific minimum opening bid amounts for all the 
construction permits available in Auction 94 are again specified in 
Attachment A to the Auction 94 Procedures Public Notice.
iii. Bid Amounts
    121. In each round, an eligible bidder will be able to place a bid 
on a given construction permit in any of up to nine different amounts 
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 for the construction permit. 
After there is a provisionally winning bid for a permit, the minimum 
acceptable bid amount will be a certain 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.
    122. The eight additional bid amounts are calculated using the 
minimum acceptable bid amount and a bid increment percentage, which 
need not be the same as the percentage used to calculate the minimum 
acceptable amount. The first additional acceptable bid amount equals 
the minimum acceptable bid amount times one plus the bid increment 
percentage, rounded. If, for example, the 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

[[Page 2272]]

of these calculations using the standard rounding procedures for 
auctions.
    123. 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. The Bureaus proposed 
to retain the discretion to do so on a construction permit-by-
construction permit basis. The Bureaus 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, the Bureaus will alert bidders by an announcement in 
the FCC Auction System during the auction.
iv. Provisionally Winning Bids
    124. 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.
    125. 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). Specifically, 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
    126. 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 94. Please note that telephonic bid assistants 
are required to use a script when entering bids placed by telephone. 
Telephonic bidders are therefore reminded to allow sufficient time to 
bid by placing their calls well in advance of the close of a round. The 
length of a call to place a telephonic bid may vary; please allow a 
minimum of ten minutes.
    127. 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.
    128. 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.
    129. 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. 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 text 
files containing bid information to be uploaded.
    130. Until a bid has been placed on a construction permit, the 
minimum acceptable bid amount for that permit will be equal to its 
minimum opening bid amount. Once there are bids on a permit, minimum 
acceptable bids for the following round will be determined.
    131. During a round, an eligible bidder may submit bids for as many 
construction permits as it wishes (providing that it is eligible to bid 
on the specific permits), remove bids placed in the current bidding 
round, or permanently reduce eligibility. If multiple bids are 
submitted for the same construction permit in the same round, the 
system takes the last bid entered as that bidder's bid for the round. 
Bidding units associated with construction permits for which the bidder 
has removed bids do not count towards current activity.
vi. Bid Removal and Bid Withdrawal
    132. In Auction 94, each bidder with 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 because a removed bid no longer counts toward 
bidding activity for the round. Once a round closes, a bidder may no 
longer remove a bid.
    133. The Bureaus will prohibit bidders from withdrawing any bids 
after the round in which the bids were placed has closed. Bidders are 
cautioned to select bid amounts carefully because no bid withdrawals 
will be allowed, even if a bid was mistakenly or erroneously made.
vii. Round Results
    134. Reports reflecting bidders' identities for Auction 94 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.
    135. Bids placed during a round will not be made public until the 
conclusion of that round. After a round closes, the Bureaus will 
compile reports of all bids placed, current provisionally winning bids, 
new minimum acceptable bid amounts 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
    136. 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

    137. 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

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submitting down payments, final payments, and the long-form 
applications (FCC Forms 301).

A. Down Payments

    138. 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 94 to twenty percent of the net 
amount of its winning bids (gross bids less any applicable new entrant 
bidding credits).

B. Final Payments

    139. 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)

    140. The Commission's rules currently provide that within thirty 
days following the close of bidding and notification to the winning 
bidders, unless a longer period is specified by public 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 94. 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

    141. 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). This payment consists of a deficiency payment, equal to 
the difference between the amount of the Auction 94 bidder's winning 
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 percentage of the 
applicable bid to be assessed as an additional payment for defaults in 
Auction 94 is Twenty percent of the applicable bid.

E. Refund of Remaining Upfront Payment Balance

    142. 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, Auctions and Spectrum Access Division, WTB.
[FR Doc. 2013-00347 Filed 1-9-13; 8:45 am]
BILLING CODE 6712-01-P