[Federal Register Volume 84, Number 72 (Monday, April 15, 2019)]
[Proposed Rules]
[Pages 15167-15173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07458]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 73

[AU Docket No. 19-61, GN Docket No. 12-268, MB Docket No. 16-306; DA 
19-229]


Auction of Construction Permits for LPTV and TV Translator 
Stations; Comment Sought on Competitive Bidding Procedures for Auction 
104

AGENCY: Federal Communications Commission.

ACTION: Proposed rule; proposed auction procedures.

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SUMMARY: In this document, the Incentive Auction Task Force and Media 
Bureau, in conjunction with the Office of Economics and Analytics, 
announce an auction of construction permits for low power television 
stations and TV translator stations. This document also seeks comment 
on competitive bidding procedures and proposed minimum opening bid 
amounts for Auction 104.

DATES: Comments are due on or before April 15, 2019, and reply comments 
are due on or before April 29, 2019. Bidding for low power television 
station and TV translator station construction permits in Auction 104 
is scheduled to begin on September 10, 2019.

ADDRESSES: Interested parties may submit comments in response to the AU 
Docket No. 19-61, GN Docket No. 12-268, and MB Docket No. 16-306 by any 
of the following methods:
     FCC's Website: Federal Communication Commission's 
Electronic Comment Filing System (ECFS): http://www.fcc.gov/ecfs/. 
Follow the instructions for submitting comments.
     People with Disabilities: To request materials in 
accessible formats for people with disabilities (Braille, large print, 
electronic files, or audio format), send an email to [email protected] or 
call the Consumer & Governmental Affairs Bureau at 202-418-0530 
(voice), 202-418-0432 (TTY).
    For detailed instructions for submitting comments, see the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For auction legal questions, Lynne 
Milne in the Office of Economics and Analytics' Auctions Division at 
(202) 418-0660. For general auction questions, the Auctions Hotline at 
(717) 338-2868. For LPTV and translator station service questions, 
Shaun Maher at (202) 418-2324 or Hossein Hashemzadeh in the Media 
Bureau's Video Division at (202) 418-1658.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
document (Auction 104 Comment Public Notice), AU Docket No. 19-61, GN 
Docket No. 12-268, MB Docket No. 16-306; DA 19-229, released on March 
29, 2019. The complete text of this document, including attachments, 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 complete text of 
this document and related documents also are available on the internet 
at the Commission's website: www.fcc.gov/auction/104, or by using the 
search function for AU Docket No. 19-61, or for GN Docket No. 12-268, 
or for MB Docket No. 16-306 on the Commission's ECFS web page at http://www.fcc.gov/ecfs/.
    All filings in response to the Auction 104 Comment Public Notice 
must refer to AU Docket No. 19-61, GN Docket No. 12-268, and MB Docket 
No. 16-306. The Incentive Auction Task Force (IATF), Media Bureau (MB) 
and the Office of Economics and Analytics (OEA) strongly encourage 
interested parties to file comments electronically, and request that an 
additional copy of all comments and reply comments be submitted 
electronically to the following address: [email protected].
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing ECFS: http://www.fcc.gov/ecfs. Follow 
the instructions for submitting comments.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission (FCC). All 
hand-delivered or messenger-delivered paper filings for the 
Commission's Secretary must be delivered to the FCC Headquarters at 445 
12th Street SW, Room TW-A325, Washington, DC 20554. The filing hours 
are 8:00 a.m. to 7:00 p.m. ET.
     All hand deliveries must be held together with rubber 
bands or fasteners. Any envelope or box must be disposed of before 
entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street SW, Washington, DC 20554.

Synopsis

I. Introduction

    1. The construction permits available in Auction 104 are those that 
remain mutually exclusive (MX) under previously-announced procedures 
governing the post-incentive auction for low power television (LPTV) 
stations and TV translator stations (collectively referred to as LPTV/
translator stations) and involve six groups of nineteen stations. 
Auction 104 is a closed auction; only those individuals or entities 
listed in Attachment A of the Auction 104 Comment Public Notice are 
eligible to participate in this auction.

II. Background

    2. Certain LPTV/translator stations were displaced from their 
authorized channels by the broadcast incentive auction (Auction 1000) 
which repurposed 84 megahertz of spectrum in the 600 MHz band that had 
been allocated for flexible use broadcast television and resulted in 
the reassignments of certain full power and Class A television 
stations. The Commission therefore adopted procedures for LPTV/
translator stations to apply for new channels and took other steps to 
mitigate the impact of this displacement.

III. Construction Permits in Auction 104

    3. Auction 104 will resolve by competitive bidding MX engineering 
proposals for up to six LPTV/translator

[[Page 15168]]

construction permits. The MX groups listed in Attachment A of the 
Auction 104 Comment Public Notice are the groups of MX engineering 
proposals that remain after an opportunity to resolve mutual 
exclusivity through settlement or technical modification of engineering 
proposals. The MX engineering proposals listed in Attachment A to the 
Auction 104 Comment Public Notice are subject to the Commission's 
competitive bidding rules and procedures. See 47 CFR part 1, subpart Q; 
see also 47 CFR 73.5000, 73.5002-73.5003, 73.5005-73.5009.
    4. An applicant listed in Attachment A may become qualified to bid 
only if it complies with the auction filing, qualification and payment 
requirements, and otherwise complies with applicable rules, policies, 
and procedures. Each listed applicant may become a qualified bidder 
only for those constructions permits specified for that applicant in 
Attachment A to the Auction 104 Comment Public Notice. Each of the 
engineering proposals within each MX group are directly mutually 
exclusive with one another; therefore, no more than one construction 
permit will be awarded for each MX group identified in Attachment A. 
Under the Commission's established precedent, once mutually exclusive 
short-form applications are accepted for a construction permit, and 
thus mutual exclusivity exists for auction purposes, an applicant 
cannot obtain a construction permit without placing a bid, even if no 
other applicant for that particular construction permit becomes 
qualified to bid, or in fact places a bid.

IV. Proposed Bidding Procedures

    5. OEA in conjunction with MB seek comment on a variety of auction-
specific procedures relating to the structure and conduct of Auction 
104.

A. Auction Structure

    6. Simultaneous Multiple Round Auction Design. IATF, MB and OEA 
seek comment on the use of the Commission's standard simultaneous 
multiple-round auction format for Auction 104. 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. Typically, bidding remains open on 
all construction permits until bidding stops on every construction 
permit.
    7. Bidding Rounds. Auction 104 will consist of sequential bidding 
rounds, each followed by the release of round results. The Commission 
will conduct Auction 104 over the internet using the FCC auction 
bidding system. Qualified bidders will also have the option of placing 
bids by telephone through a dedicated auction bidder line.
    8. IATF, MB and OEA seek comment on the proposal to retain the 
discretion to change the bidding schedule to foster an auction pace 
that reasonably balances speed with the bidders' need to study round 
results and adjust their bidding strategies. Under this proposal, 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, may change. Commenters on this issue should 
address the role of the bidding schedule in managing the pace of the 
auction, specifically discussing the tradeoffs in managing auction pace 
by bidding schedule changes, by changing the activity requirements or 
bid amount parameters, or by using other means.
    9. Stopping Rule. To complete bidding in the auction within a 
reasonable time, pursuant to CFR 1.2104(e), it is proposed to employ a 
simultaneous stopping rule approach for Auction 104, which means all 
construction permits remain available for bidding until bidding stops 
on every construction permit. Specifically, bidding would close on all 
construction permits after the first round in which no bidder submits 
any new bids, applies a proactive waiver, or, if bid withdrawals are 
permitted in this auction, withdraws any provisionally winning bid 
which is a bid that would become a final winning bid if the auction 
were to close in that given round. Thus, unless alternative procedures 
are announced, under the proposed simultaneous stopping rule, bidding 
will remain open on all construction permits until bidding stops on 
every construction permit. Consequently, it is not possible to 
determine in advance how long the bidding in this auction will last.
    10. Further, the following options were proposed as alternatives 
during Auction 104. (1) Use a modified version of the simultaneous 
stopping rule that would close the auction for all construction permits 
after the first round in which no bidder applies a waiver, withdraws a 
provisionally winning bid (if withdrawals are permitted in this 
auction), or places any new bid on a construction permit for which it 
is not the provisionally winning bidder, which means that, 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. (2) Use a modified version of the simultaneous 
stopping rule that would close the auction for all construction permits 
after the first round in which no bidder applies a waiver, withdraws a 
provisionally winning bid (if withdrawals are permitted in this 
auction), or places any new bid on a construction permit that already 
has a provisionally winning bid, which means that, absent any other 
bidding activity, a bidder placing a new bid on an FCC-held 
construction permit (a construction permit that does not already have a 
provisionally winning bid) would not keep the auction open. (3) Use a 
modified version of the simultaneous stopping rule that combines 
options (1) and (2). (4) Use a special stopping rule that would close 
the auction after a specified number of additional rounds to be 
announced in the FCC auction bidding system. If this special stopping 
rule is invoked, bids are accepted in the specified final round(s), 
after which the auction will close. (5) The auction would remain open 
even if no bidder places any new bid, applies a waiver, or withdraws 
any provisionally winning bid (if withdrawals are permitted in this 
auction). In this event, the effect will be the same as if a bidder had 
applied a waiver. The activity rule will apply as usual, and a bidder 
with insufficient activity will either lose bidding eligibility or use 
a waiver.
    11. IATF, MB and OEA propose 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, it is likely that there will be an attempt to change the 
pace of the auction. For example, the pace of bidding may be adjusted 
by changing the number of bidding rounds per day and/or the minimum 
acceptable bids. IATF, MB and OEA propose to retain the discretion to 
exercise any of these options with or without prior announcement during 
the auction. IATF, MB and OEA seek comment on these proposals.
    12. Auction Delay, Suspension or Cancellation. Pursuant to 47 CFR 
1.2104(i), IATF, MB and OEA propose that they may delay, suspend, or 
cancel bidding in Auction 104 in the event of a 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. Auction 104 participants will be notified of any such delay,

[[Page 15169]]

suspension or cancellation by public notice and/or through the FCC 
auction bidding system's messages function. If bidding is delayed or 
suspended, IATF, MB and OEA may, in their sole discretion, elect to 
resume the auction starting from the beginning of the current round or 
from some previous round, or cancel the auction in its entirety. 
Network interruption may cause IATF, MB and OEA to delay or suspend the 
auction. IATF, MB and OEA will exercise this authority solely at their 
discretion, and not as a substitute for situations in which bidders may 
wish to apply activity rule waivers. IATF, MB and OEA seek comment on 
these proposals.

B. Auction Procedures

    13. Upfront Payments and Bidding Eligibility. IATF, MB and OEA seek 
comment on the upfront payment amounts proposed in Attachment A of the 
Auction 104 Comment Public Notice, which were developed by taking into 
account such factors as the efficiency of the auction process and the 
potential value of similar construction permits. The upfront payment is 
a refundable deposit made by an applicant to establish eligibility to 
bid on construction permits. Upfront payments that are related to the 
specific construction permits being auctioned protect against frivolous 
or insincere bidding and provide the Commission with a source of funds 
from which to collect payments owed at the close of bidding.
    14. IATF, MB and OEA request comment on the proposal that the 
amount of the upfront payment submitted by a bidder will determine its 
initial bidding eligibility in bidding units. Under this proposal, each 
construction permit will be assigned a specific number of bidding 
units, equal to one bidding unit per dollar of the upfront payment 
listed in Attachment A of the Auction 104 Comment Public Notice. The 
number of bidding units for a given construction permit is fixed and 
does not change during the auction as prices change. If an applicant is 
found to be qualified to bid on more than one permit in Auction 104, 
such a bidder may place bids on multiple construction permits, provided 
that the total number of bidding units associated with those 
construction permits does not exceed the bidder's current eligibility. 
A bidder cannot increase its eligibility during the auction; it can 
only maintain its eligibility or decrease its eligibility. Thus, in 
calculating its upfront payment amount and hence its initial bidding 
eligibility, an applicant must determine the maximum number of bidding 
units on which it may wish to bid (or hold provisionally winning bids) 
in any single round, and submit an upfront payment amount covering that 
total number of bidding units.
    15. Activity Rule. To ensure that the 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. IATF, MB and OEA request comment on the 
proposal for a single stage auction with the following activity 
requirement: In each round of the auction, a bidder desiring to 
maintain its current bidding eligibility is required to be active on 
100% of its bidding eligibility. A bidder's activity in a round will be 
the sum of the bidding units associated with any construction permit 
upon which it places a bid during the current round and the bidding 
units associated with any construction permit for which it holds a 
provisionally winning bid. Failure to maintain the requisite activity 
level would result in the use of an activity rule waiver, if any, or a 
reduction in the bidder's eligibility, possibly curtailing or 
eliminating the bidder's ability to place additional bids in the 
auction.
    16. Activity Rule Waivers and Reducing Eligibility. When a bidder's 
activity in the current round is below the required minimum level, it 
may preserve its current level of eligibility through an activity rule 
waiver, if available. An activity rule waiver applies to an entire 
round of bidding, not to a particular construction permit. Activity 
rule waivers can be either proactive or automatic. Activity rule 
waivers are principally a mechanism for a bidder to avoid the loss of 
bidding eligibility in the event that exigent circumstances prevent it 
from bidding in a particular round.
    17. The FCC auction bidding system will assume that a bidder that 
does not meet the activity requirement would prefer to use 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 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, thereby meeting the activity requirement. If a 
bidder has no waivers remaining and does not satisfy the required 
activity level, the bidder's current eligibility will be permanently 
reduced, possibly curtailing or eliminating the ability to place 
additional bids in the auction.
    18. 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 bidding system. In this case, the bidder's eligibility 
would be permanently reduced to bring it into compliance with the 
specified activity requirement. Reducing eligibility is an irreversible 
action; once eligibility has been reduced, a bidder cannot regain its 
lost bidding eligibility.
    19. Under the proposed simultaneous stopping rule, a bidder may 
apply an activity rule waiver proactively as a means to keep the 
auction open without placing a bid. If a bidder proactively applies an 
activity rule waiver (using the proactive waiver function in the FCC 
auction bidding system) during a bidding round in which no bids are 
placed or withdrawn (if bid withdrawals are permitted in this auction), 
the auction will remain open and the bidder's eligibility will be 
preserved. An automatic waiver applied by the FCC auction bidding 
system in a round in which there are no new bids, no bid withdrawal (if 
bid withdrawals are permitted in this auction), and no proactive waiver 
will not keep the auction open. Comment is requested on the proposal 
that each bidder in Auction 104 be provided with three activity rule 
waivers that may be used at the bidder's discretion during the course 
of the auction.
    20. Reserve Price or Minimum Opening Bids. Normally, a reserve 
price is an absolute minimum price below which a construction permit 
will not be sold in a given auction. IATF, MB and OEA propose to 
establish no separate reserve prices for the Auction 104 construction 
permits available in Auction 104.
    21. A minimum opening bid is the minimum bid price set at the 
beginning of the auction below which no bids are accepted. See 47 CFR 
1.2104(c), (d). Attachment A of the Auction 104 Comment Public Notice 
lists a proposed minimum opening bid amount for each construction 
permit available in Auction 104. While minimum opening bid amounts for 
Auction 104 were determined by taking into account the type of service 
and class of facility offered, market size, population covered by the 
proposed broadcast facility, and recent broadcast transaction data, to 
the extent such information is available, consideration of such factors 
for Auction 104 is complicated by a dearth of such transaction data, 
the fact that a

[[Page 15170]]

permittee may opt to switch its intended use of such facility from LPTV 
to translator operation, or vice versa, and the lack of accurate data 
on the population that would be covered by each proposed facility. 
Consistent with 47 U.S.C. 309(j)(4)(f), IATF, MB and OEA seek comment 
on the minimum opening bid amounts specified in Attachment A of the 
Auction 104 Comment Public Notice.
    22. If commenters believe that these minimum opening bid amounts 
will result in unsold construction permits, are not reasonable amounts, 
or should instead operate as reserve prices, they should explain why 
this is so and comment on the desirability of an alternative approach. 
Commenters should support their claims with valuation analyses and 
suggested amounts or formulas for reserve prices or minimum opening 
bids. IATF, MB and OEA particularly seek comment on factors that could 
reasonably have an impact on bidders' valuation of the broadcast 
spectrum, including the type of service offered, market size, 
population covered by the proposed broadcast facility, and any other 
relevant factors.
    23. Bid Amounts. IATF, MB and OEA propose that, if the bidder has 
sufficient eligibility to place a bid on a particular construction 
permit in a round, an eligible bidder will be able to place a bid on 
that construction permit in any of up to nine different amounts. Under 
this proposal, the FCC auction bidding system interface will list the 
acceptable bid amounts for each construction permit.
    24. 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 construction permit, 
the minimum acceptable bid amount will be a certain percentage higher. 
The percentage used for this calculation, the minimum acceptable bid 
increment percentage, is multiplied by the provisionally winning bid 
amount, and the resulting amount is added to the provisionally winning 
bid amount. If, for example, the minimum acceptable bid increment 
percentage is 10%, then the provisionally winning bid amount is 
multiplied by 10%. The result of that calculation is added to the 
provisionally winning bid amount, and that sum is rounded using the 
Commission's standard rounding procedure for auctions. If bid 
withdrawals are permitted in this auction, in the case of a 
construction permit for which the provisionally winning bid has been 
withdrawn, the minimum acceptable bid amount will equal the second 
highest bid received for the construction permit.
    25. The FCC will calculate the eight additional bid amounts using 
the minimum acceptable bid amount and an additional bid increment 
percentage. The minimum acceptable bid amount is multiplied by the 
additional bid increment percentage, and that result, rounded, is the 
additional increment amount. The first additional acceptable bid amount 
equals the minimum acceptable bid amount plus the additional increment 
amount. The second additional acceptable bid amount equals the minimum 
acceptable bid amount plus two times the additional increment amount; 
the third additional acceptable bid amount is the minimum acceptable 
bid amount plus three times the additional increment amount; etc. If, 
for example, the additional bid increment percentage is 5%, then the 
calculation of the additional increment amount is (minimum acceptable 
bid amount) * (0.05), rounded. The first additional acceptable bid 
amount equals (minimum acceptable bid amount) + (additional increment 
amount); the second additional acceptable bid amount equals (minimum 
acceptable bid amount) + (2 * (additional increment amount)); the third 
additional acceptable bid amount equals (minimum acceptable bid amount) 
+ (3 * (additional increment amount)); etc. The results then will be 
rounded using the Commission's standard rounding procedures for 
auctions.
    26. For Auction 104, IATF, MB and OEA propose to use a minimum 
acceptable bid increment percentage of 10%. This means that the minimum 
acceptable bid amount for a construction permit will be approximately 
10% greater than the provisionally winning bid amount for the 
construction permit. To calculate the additional acceptable bid 
amounts, IATF, MB and OEA proposed to use an additional bid increment 
percentage of 5%. IATF, MB and OEA seek comment on these proposals.
    27. IATF, MB and OEA propose to retain the discretion to change the 
minimum acceptable bid amounts, the minimum acceptable bid increment 
percentage, the additional bid increment percentage, and the number of 
acceptable bid amounts if circumstances so dictate. Further, IATF, MB 
and OEA propose to retain the discretion to do so on a construction-
permit-by-construction-permit basis. IATF, MB and OEA also propose to 
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, a $1,000 limit could be 
set on increases in minimum acceptable bid amounts over provisionally 
winning bids. In this example, if calculating a minimum acceptable bid 
using the minimum acceptable bid increment percentage results in a 
minimum acceptable bid amount that is $1,200 higher than the 
provisionally winning bid on a construction permit, the minimum 
acceptable bid amount would instead be capped at $1,000 above the 
provisionally winning bid. IATF, MB and OEA seek comment on the 
circumstances under which such a limit should be employed, factors to 
be considered when determining the dollar amount of the limit, and the 
tradeoffs in setting such a limit or changing other parameters, such as 
changing the minimum acceptable bid percentage, the bid increment 
percentage, or the number of acceptable bid amounts. If IATF, MB and 
OEA exercise this discretion, they will alert bidders by announcement 
in the FCC auction bidding system during the auction. IATF, MB and OEA 
seek comment on these proposals.
    28. Provisionally Winning Bids. At the end of each bidding round, 
the bidding system will determine a provisionally winning bid for each 
construction permit based on the highest bid amount received. 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.
    29. The auction bidding system assigns a random number to each bid 
when the bid is entered. This number is technically a pseudo-random 
number generated by an algorithm. If identical high bid amounts are 
submitted on a construction permit in any given round (i.e., tied 
bids), the FCC auction bidding system will use a random number to 
select a single provisionally winning bid from among the tied bids. The 
tied bid with the highest random number wins the tiebreaker and becomes 
the provisionally winning bid. The remaining bidders, as well as the 
provisionally winning bidder, can submit higher bids in subsequent 
rounds. However, if the auction were to

[[Page 15171]]

close with no other bids being placed, the winning bidder would be the 
one that placed the provisionally winning bid. If the construction 
permit receives any bids in a subsequent round, the provisionally 
winning bid again will be determined by the highest bid amount received 
for the construction permit.
    30. A provisionally winning bid will be retained until there is a 
higher bid on the construction permit at the close of a subsequent 
round, unless the provisionally winning bid is withdrawn (if bid 
withdrawals are permitted in this auction). Provisionally winning bids 
count toward a bidder's activity level for purposes of the activity 
rule.
    31. Bid Removal and Bid Withdrawal. The FCC auction bidding system 
allows each bidder to remove any of the bids it placed in a round 
before the close of that round. By removing a bid placed within a 
round, a bidder effectively unsubmits the bid. A bidder removing a bid 
placed in the same round is not subject to a withdrawal payment. Once a 
round closes, a bidder is no longer permitted to remove a bid.
    32. When permitted in an auction, bid withdrawals provide a bidder 
with the option of withdrawing a bid placed in a prior round that has 
become a provisionally winning bid. A bidder would be able to withdraw 
its provisionally winning bid using the withdraw function in the FCC 
auction bidding system. A bidder that withdraws its provisionally 
winning bid(s), if permitted in this auction, is subject to the bid 
withdrawal payment provisions of 47 CFR 1.2104(g) and 1.2109.
    33. Based on the nature of the permits available in Auction 104 and 
on the experience with past auctions of broadcast construction permits, 
IATF, MB and OEA propose to prohibit bidders from withdrawing any bid 
after the close of the round in which the bid was placed. This proposal 
is made in light of the site- and applicant-specific nature and wide 
geographic dispersion of the permits available in this closed auction. 
I It is unlikely that bidders will have a need to withdraw bids in this 
auction. Also, bid withdrawals may encourage insincere bidding or 
increase opportunities for anti-competitive bidding in certain 
circumstances. Bid withdrawals, particularly those made late in this 
auction, could result in delays in licensing replacement LPTV/
translator stations and disruption in providing broadcast service to 
the public. IATF, MB and OEA seek comment on their proposal to prohibit 
bid withdrawals in Auction 104.

C. Post-Auction Payments

    34. Interim Withdrawal Payment Percentage. If bid withdrawals are 
permitted in Auction 104, a bidder that withdraws a bid during an 
auction is subject to a withdrawal payment equal to the difference 
between the amount of the withdrawn bid and the amount of the winning 
bid in the same or a subsequent auction. However, if a construction 
permit for which a bid has been withdrawn does not receive a subsequent 
higher bid or winning bid in the same auction, the FCC cannot calculate 
the final withdrawal payment until that construction permit receives a 
higher bid or winning bid in a subsequent auction. In accordance with 
47 CFR 1.2104(g)(1), when that final withdrawal payment cannot yet be 
calculated, the FCC imposes on the bidder responsible for the withdrawn 
bid an interim bid withdrawal payment, which will be applied toward any 
final bid withdrawal payment that is ultimately assessed.
    35. IATF, MB and OEA request comment on the proposal that the 
interim bid withdrawal payment be 20% of the withdrawn bid. Commenters 
advocating the use of bid withdrawals should also address the 
percentage of the interim bid withdrawal payment which may range from 
3% to 20% of the withdrawn bid amount.
    36. Additional Default Payment Percentage. Any winning bidder that 
defaults or is disqualified after the close of an auction (i.e., fails 
to remit the required down payment by the specified deadline, fails to 
make a full and timely final payment, or whose long-form application is 
not granted for any reason or is otherwise disqualified) is liable for 
a default payment under 47 CFR 1.2104(g)(2). This default payment 
consists of a deficiency payment equal to the difference between the 
amount of the Auction 104 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.
    37. Based on the nature of the service and the construction permits 
being offered, an additional default payment of 20% of the relevant bid 
is proposed for Auction 104. IATF, MB and OEA seek comment on this 
proposal.

V. Procedural Matters

A. Paperwork Reduction Act

    38. This document does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. Therefore, it also does not contain any new 
or modified information collection burden for small business concerns 
with fewer than 25 employees pursuant to the Small Business Paperwork 
Relief Act of 2002, Public Law 107-198. See 44 U.S.C. 3506(c)(4).

B. Ex Parte Rules

    39. This proceeding has been designated as a permit-but-disclose 
proceeding in accordance with the Commission's ex parte rules, 47 CFR 
1.1200(a), 1.1206. While additional information is provided in the 
Auction 104 Comment Public Notice on the relevant reporting 
requirements, participants in Auction 104 should familiarize themselves 
with the Commission's ex parte rules.

VI. Supplemental Initial Regulatory Flexibility Analysis

    40. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), 5 U.S.C. 603, the Commission prepared Initial Regulatory 
Flexibility Analyses (IRFAs) in connection with the 1997 Broadcast 
Competitive Bidding Notice of Proposed Rulemaking (NPRM), and other 
Commissions NPRMs (collectively, Competitive Bidding NPRMs) pursuant to 
which Auction 104 will be conducted. Final Regulatory Flexibility 
Analyses (FRFAs) likewise were prepared in the 1998 Broadcast 
Competitive Bidding Order and other Commission rulemaking orders 
(collectively, Competitive Bidding Orders) pursuant to which Auction 
104 will be conducted. The Incentive Auction Task Force (IATF), the 
Media Bureau (MB) and the Office of Economics and Analytics (OEA) have 
prepared this Supplemental IRFA of the possible significant economic 
impact on small entities of the policies and rules addressed in the 
Auction 104 Comment Public Notice, to supplement the Commission's 
Initial and Final Regulatory Flexibility Analyses completed in the 
Broadcast Competitive Bidding Order and other Commission orders 
pursuant to which Auction 104 will be conducted. Written public 
comments are requested on this Supplemental IRFA. Comments must be 
identified as responses to the Supplemental IRFA and must be filed by 
the same filing deadlines for comments specified on the first page of 
the Auction 104 Comment Public Notice. The Commission will send a copy 
of the Public Notice, including this Supplemental IRFA, to the Chief 
Counsel for Advocacy of the Small

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Business Administration (SBA). 5 U.S.C. 603(a).
    41. Need for, and Objectives of, the Public Notice. The proposed 
procedures for the conduct of Auction 104 as described in the Auction 
104 Comment Public Notice would constitute the more specific 
implementation of the competitive bidding rules contemplated by 47 CFR 
parts 1 and 73, adopted by the Commission in multiple notice-and-
comment rulemaking proceedings, including the Commission's establishing 
in the underlying rulemaking orders additional procedures to be used on 
delegated authority. More specifically, the Auction 104 Comment Public 
Notice seeks comment on proposed procedures, terms and conditions 
governing Auction 104 and the post-auction payment processes, as well 
as seeking comment on the minimum opening bid amounts for 6 specified 
construction permits, and are fully consistent with the underlying 
rulemaking orders, including the Broadcast Competitive Bidding Order 
and other relevant competitive bidding orders.
    42. Consistent with 47 U.S.C. 309(j)(3)(E)(i), the Auction 104 
Comment Public Notice is intended to provide notice of and adequate 
time for Auction 104 applicants to comment on proposed auction 
procedures. To promote the efficient and fair administration of the 
competitive bidding process for all Auction 104 participants, including 
small businesses, IATF, MB and OEA seek comment on the following 
proposed procedures: (1) Use of a simultaneous multiple-round auction 
format, consisting of sequential bidding rounds with a simultaneous 
stopping rule (with discretion to exercise alternative stopping rules 
under certain circumstances); (2) A specific minimum opening bid amount 
for each construction permit available in Auction 104; (3) A specific 
number of bidding units for each construction permit; (4) A specific 
upfront payment amount for each construction permit; (5) Establishment 
of a bidder's initial bidding eligibility in bidding units based on 
that bidder's upfront payment through assignment of a specific number 
of bidding units for each construction permit; (6) Use of an activity 
requirement so that bidders must bid actively during the auction rather 
than waiting until late in the auction before participating; (7) A 
single stage auction in which a qualified bidder is required to be 
active on 100% of its bidding eligibility in each round of the auction; 
(8) Provision of three activity rule waivers for each qualified bidder 
to allow it to preserve eligibility during the course of the auction; 
(9) Use of minimum acceptable bid amounts and additional bid 
increments, along with a proposed methodology for calculating such 
amounts, while retaining discretion to change their methodology if 
circumstances dictate; (10) A procedure for breaking ties if identical 
high bid amounts are submitted on a construction permit in a given 
round; (11) Whether to permit bid withdrawals in Auction 104; (12) 
Establishment of an interim bid withdrawal percentage of 20% of the 
withdrawn bid in the event bid withdrawals are permitted in Auction 
104; and (13) Establishment of an additional default payment of 20% 
under 47 CFR 1.2104(g)(2) in the event that a winning bidder defaults 
or is disqualified after the auction.
    43. Legal Basis. The Commission's statutory obligations to small 
businesses participating in a spectrum auction under the Communications 
Act of 1934, as amended (the Act), are found in 47 U.S.C. 309(j)(3)(B) 
and 309(j)(4)(D). The statutory basis for the Commission's competitive 
bidding rules is found in various provisions of the Act, including 47 
U.S.C. 154(i), 301, 303(e), 303(f), 303(r), 304, 307, and 309(j). The 
Commission has established a framework of competitive bidding rules 
pursuant to which it has conducted auctions since the inception of the 
auction program in 1994 and would conduct Auction 104. The Commission 
has directed that OEA, in conjunction with MB, under delegated 
authority, seek comment on a variety of auction-specific procedures 
prior to the start of bidding in each auction.
    44. Description and Estimate of the Number of Small Entities to 
Which the Proposed Procedures Will Apply. The RFA directs agencies to 
provide a description of and, where feasible, an estimate of the number 
of small entities that may be affected by the proposed procedures, if 
adopted. 5 U.S.C. 603(b)(3). The RFA generally defines the term small 
entity as having the same meaning as the terms small business, small 
organization, and small government jurisdiction. 5 U.S.C. 601(6). In 
addition, the term small business has the same meaning as the term 
small business concern under the Small Business Act. 5 U.S.C. 601(3). A 
small business concern is one which: (1) Is independently owned and 
operated, (2) is not dominant in its field of operation, and (3) 
satisfies any additional criteria established by the SBA. 15 U.S.C. 
632.
    45. The specific procedures and minimum opening bid amounts on 
which comment is sought in the Auction 104 Comment Public Notice will 
affect directly all applicants participating in Auction 104. There are 
a maximum of 14 individuals or entities that may become qualified 
bidders in Auction 104, in which applicant eligibility is closed. 
Therefore, the specific competitive bidding procedures and minimum 
opening bid amounts described in the Auction 104 Comment Public Notice 
will affect only the 14 individuals or entities listed in Attachment A 
to the Auction 104 Comment Public Notice and that are the only parties 
eligible to complete the remaining steps to become qualified to bid in 
Auction 104. These specific 14 Auction 104 individuals or entities 
include firms of all sizes.
    46. Television Broadcasting. This U.S. Economic Census category 
comprises establishments primarily engaged in broadcasting images 
together with sound. These establishments operate television broadcast 
studios and facilities for the programming and transmission of programs 
to the public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in turn 
broadcast the programs to the public on a predetermined schedule. 
Programming may originate in their own studio, from an affiliated 
network, or from external sources. The SBA has created the following 
small business size standard for such businesses: Those having $38.5 
million or less in annual receipts. 13 CFR 121.201. The 2012 Economic 
Census reports that 751 firms in this category operated in that year. 
Of that number, 656 had annual receipts of $25 million or less, 25 had 
annual receipts between $25 million and $49,999,999 and 70 had annual 
receipts of $50 million or more. Based on this data, OEA, in 
conjunction with MB, estimate that the majority of commercial 
television broadcast stations are small entities under the applicable 
size standard.
    47. The Commission has estimated the number of licensed commercial 
television stations to be 1,373. Of this total, 1,270 stations (or 
about 92.5%) had revenues of $38.5 million or less, according to 
Commission staff review of the BIA Kelsey Inc. Media Access Pro 
Television Database (BIA) in November of 2018, and therefore these 
stations qualify as small entities under the SBA definition.
    48. The Commission has estimated the number of licensed 
noncommercial educational (NCE) television stations to be 388. These 
stations are non-profit, and therefore are considered to be small 
entities. 5 U.S.C. 601(4), (6).
    49. According to Commission estimates, there are 2,295 LPTV 
stations,

[[Page 15173]]

including Class A stations, and 3,654 TV translators. Given the nature 
of these services, it is presumed that all of these entities qualify as 
small entities under the SBA small business size standard. The SBA size 
standard data does not enable us, however, to make a meaningful 
estimate of the number of small entities that may participate in 
Auction 104.
    50. In assessing whether a business entity qualifies as small under 
the SBA definition, business control affiliations must be included. 13 
CFR 121.103(a)(1). The estimate of the number of small entities that 
might be affected by Auction 104 likely overstates the estimate because 
the revenue figure on which business concerns are based does not 
include or aggregate revenues from affiliated companies. Moreover, the 
definition of small business also requires that an entity not be 
dominant in its field of operation and that the entity be independently 
owned and operated. The estimate of small businesses to which Auction 
104 competitive bidding rules may apply does not exclude any radio 
station from the definition of a small business on these bases and is 
therefore over-inclusive to that extent. OEA, in conjunction with the 
Media Bureau, are unable at this time to define or quantify the 
criteria that would establish whether a specific LPTV station or TV 
translator is dominant in its field of operation. In addition, it is 
difficult to assess these criteria in the context of media entities and 
therefore estimates of small businesses to which they apply may be 
over-inclusive to this extent.
    51. OEA, in conjunction with MB, are unable to accurately develop 
an estimate of how many of these 14 individuals or entities in this 
auction are small businesses based on the number of small entities that 
applied to participate in prior broadcast auctions because that 
information is not collected from applicants for broadcast auctions in 
which bidding credits are not based on an applicant's size (as is the 
case in auctions of licenses for wireless services). OEA, in 
conjunction with MB, conclude, however, that the majority of Auction 
104 eligible bidders would likely meet the SBA's definition of a small 
business concern.
    52. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities. The Auction 104 Comment 
Public Notice proposes no new reporting, recordkeeping, or other 
compliance requirements for small entities or other auction applicants. 
The Commission designed the auction application process itself to 
minimize reporting and compliance requirements for applicants, 
including small business applicants. To participate in this auction 
parties will file streamlined, short-form applications in which they 
certify under penalty of perjury as to their qualifications. 
Eligibility to participate in bidding is based on an applicant's short-
form application and certifications, as well as its upfront payment. In 
the second phase of the process, there are additional compliance 
requirements for winning bidders. Thus, a small business that fails to 
become a winning bidder does not need to satisfy additional 
requirements of a winning bidder.
    53. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered. The RFA requires an 
agency to describe any significant, specifically small business, 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance and reporting requirements under the rule for such small 
entities; (3) the use of performance rather than design standards; and 
(4) an exemption from coverage of the rule, or any part thereof, for 
small entities. 5 U.S.C. 603(c).
    54. OEA, in conjunction with MB, intend that the proposals of the 
Auction 104 Comment Public Notice to facilitate participation in 
Auction 104 will result in both operational and administrative cost 
savings for small entities and other auction participants. In light of 
the numerous resources that will be available from the Commission at no 
cost, the processes and procedures proposed for Auction 104 in the 
Auction 104 Comment Public Notice should result in minimal economic 
impact on small entities. For example, prior to the auction, the 
Commission will hold a mock auction to allow eligible bidders the 
opportunity to familiarize themselves with both the bidding processes 
and systems that will be used in Auction 104. During the auction, 
participants will be able to access and participate in bidding via the 
internet using a web-based system, or telephonically, providing two 
cost-effective methods of participation and avoiding the cost of travel 
for in-person participation. Further, small entities as well as other 
auction participants will be able to avail themselves of a telephone 
hotline for assistance with auction processes and procedures as well as 
a telephone technical support hotline to assist with issues such as 
access to or navigation within the electronic FCC Form 175 and use of 
the FCC's auction system. In addition, all auction participants, 
including small business entities, will have access to various other 
sources of information and databases through the Commission that will 
aid in both their understanding of and participation in the process. 
These mechanisms are made available to facilitate participation in 
Auction 104 by all eligible bidders and may result in significant cost 
savings for small business entities that utilize these mechanisms. 
These steps, coupled with the advance description of the bidding 
procedures in Auction 104, should ensure that the auction will be 
administered efficiently and fairly, thus providing certainty for small 
entities as well as other auction participants.
    55. Federal Rules that May Duplicate, Overlap, or Conflict with the 
Proposed Rules. None.

Federal Communications Commission.
Gary Michaels,
Deputy Chief, Auctions Division, Office of Economics and Analytics.
[FR Doc. 2019-07458 Filed 4-12-19; 8:45 am]
 BILLING CODE 6712-01-P