[Federal Register Volume 87, Number 40 (Tuesday, March 1, 2022)]
[Proposed Rules]
[Pages 11379-11382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04006]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 27

[AU Docket No. 20-429; DA 22-171; FR ID 73250]


Revised Inventory for Auction of Flexible-Use Licenses in the 2.5 
GHz Band; Comment Sought on Upfront Payments, Minimum Opening Bids, and 
Other Procedures for the Revised Inventory of Auction 108

AGENCY: Federal Communications Commission.

ACTION: Proposed rule; proposed auction procedures.

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SUMMARY: The Office of Economics and Analytics and the Wireless 
Telecommunications Bureau seek comment on the application of procedures 
governing the conduct of Auction 108 in light of additions to the 
proposed license inventory for Auction 108.

DATES: Comments are due on or before March 4, 2022.

ADDRESSES: Interested parties may file comments in AU Docket No. 20-
429. Comments may be filed using the Commission's Electronic Comment 
Filing System (ECFS) or by filing paper copies. Interested parties are 
strongly encouraged to file comments electronically.
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS at https://www.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
     Filings in response to the Public Notice can be sent by 
commercial 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.
     Commercial deliveries (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Dr., 
Annapolis Junction, MD 20701.
     U.S. Postal Service first-class, Express, or Priority mail 
must be addressed to 45 L Street NE, Washington, DC 20554.
     Until further notice, the Commission no longer accepts any 
hand or messenger delivered filings. This is a temporary measure taken 
to help protect the health and safety of individuals, and to mitigate 
the transmission of COVID-19.
     Email: Commenters are asked to also submit a copy of their 
comments and reply comments electronically to the following address: 
[email protected].

FOR FURTHER INFORMATION CONTACT: 
    Auction Legal Questions: Daniel Habif, Lyndsey Grunewald or Scott 
Mackoul, (202) 418-0660.
    General Auction Questions: (717) 338-2868.
    Auction Inventory Questions: John Schauble, (202) 418-0797.
    2.5 GHz Band Licensing Questions: Madelaine Maior, (202) 418-1466, 
or Nadja Sodos-Wallace, (202) 418-0955.

SUPPLEMENTARY INFORMATION: This is a summary of the Auction 108 Revised 
Inventory Public Notice, AU Docket No. 20-429, DA 22-171, adopted on 
February 18, 2022 and released on February 18, 2022. The complete text 
of the Auction 108 Revised Inventory Comment Public Notice is available 
on the Commission's website at https://www.fcc.gov/auction/108 or by 
using the search function for AU Docket No. 20-429, DA 22-171, on the 
Commission's Electronic Comment Filing System (ECFS) web page at 
www.fcc.gov/ecfs. Alternative formats are available to persons with 
disabilities by sending an email to [email protected] or by calling the 
Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 
418-0432 (TTY).

I. Introduction

    1. By the Auction 108 Revised Inventory Comment Public Notice, the 
Office of Economics and Analytics (OEA) and the Wireless 
Telecommunications Bureau (WTB) seek further comment on the procedures 
governing to be used for Auction 108. Specifically, OEA and WTB seek 
comment on whether any procedures need to be adjusted for all the 
licenses available in Auction 108 in light of additions to the initial 
license inventory. OEA and WTB also seek comment on minimum opening 
bids and upfront payment amounts for the additional licenses. OEA and 
WTB have updated the listing of county and channel block combinations 
potentially available for Auction 108 to add or remove certain 
licenses, and that updated Attachment A file is available at 
www.fcc.gov/auction/108.
    2. On January 13, 2021, the Commission released the Auction 108

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Comment Public Notice, 86 FR 12146, that sought comment on competitive 
bidding procedures and various other procedures to be used in Auction 
108, in accordance with 47 U.S.C. 309(j)(3). That public notice also 
described the licenses to be offered in Auction 108 and made available 
a file listing all county and channel block combinations potentially 
available for bidding in Auction 108. The Commission noted that the 
results of the Rural Tribal Priority Window would determine the final 
inventory, which would be released in advance of the deadline for the 
submission of short-form applications to bid in Auction 108. On 
February 9, 2022, OEA and WTB released the Auction 108 Further Comment 
Public Notice, 87 FR 8764, seeking comment on the use of a particular 
clock auction format for Auction 108.
    3. The Auction 108 Revised Inventory Comment Public Notice seeks 
focused input on whether any bidding procedures for Auction 108 as 
described in those previous public notices should be adjusted or 
modified in light of the additions to the auction inventory. The 
Auction 108 Revised Inventory Comment Public Notice proposes no changes 
to the proposed upfront payments, minimum opening bids, or other 
procedures from those described in the Auction 108 Comment Public 
Notice and the Auction 108 Further Comment Public Notice. In light of 
the limited scope of the Auction 108 Revised Inventory Comment Public 
Notice and comments urging the Commission to move expeditiously to the 
start of bidding, OEA and WTB provide for a single round of comments by 
March 4, 2022, with no filing period for reply comments. A subsequent 
public notice will announce final procedures for Auction 108, including 
the procedures, terms, conditions, dates, and deadlines for applying to 
and participating in Auction 108, as well as provide an overview of the 
post-auction application and payment processes. An updated inventory 
for Auction 108 will be released prior to the short-form application 
deadline in Auction 108.

II. Background on Revised Inventory

    4. In light of the comments and ex parte filings made in this 
proceeding raising issues concerning the accuracy of the inventory, WTB 
staff performed additional geographic information systems (GIS) 
analysis of existing licenses and prepared a new inventory based on 
license service area data extracted from the Universal Licensing System 
(ULS) on February 2, 2022. For purposes of this analysis, a channel 
block/county combination is considered unavailable, and is therefore 
not included in the inventory, if more than 99.9999% of the area within 
the county is fully encumbered by an existing license for that channel 
block. In the 2.5 GHz Report and Order, 84 FR 57343, the Commission 
determined that any remaining unassigned EBS spectrum will be made 
available for commercial use via competitive bidding. In order to 
identify unassigned spectrum, WTB has treated as encumbered any areas 
calculated to be at least 99.9999% encumbered to avoid computational 
errors found to have been attributable to rounding when calculating 
areas as part of its GIS analysis. As a result of this further 
analysis, and taking into account the information provided by 
commenters, OEA and WTB have added 189 licenses in 130 counties and 
removed 370 licenses in 301 counties from the initial Auction 108 
inventory. The majority of the changes to the inventory result from 
further review of the availability of the J guard band (2568-2572 MHz) 
in Channel Block 2 and further analysis of how canceled, terminated, or 
expired licenses modified the geographic service areas of active 
licenses.
    5. In addition to reflecting further analysis of the incumbent 
licenses, the revised inventory also takes into account WTB's actions 
in the Rural Tribal Priority Window. The Commission established the 
Rural Tribal Priority Window to provide federally-recognized tribes 
with an opportunity to submit applications to obtain unassigned 2.5 GHz 
spectrum in order to foster communications networks in rural Tribal 
areas. The Rural Tribal Priority Window opened on February 3, 2020, and 
closed on September 2, 2020. The revised inventory reflects licenses 
issued based upon Rural Tribal Priority Window applications acted on to 
date. This inventory does not take into account Rural Tribal Priority 
Window applications that are pending (i.e., counties that are requested 
in whole or in part by pending applications are included in this 
inventory). Potential bidders should be aware that there are counties 
that would become fully or partially encumbered if certain pending 
Rural Tribal Priority Window applications are granted.
    6. OEA and WTB remind each potential bidder that it is solely 
responsible for investigating and evaluating all technical and 
marketplace factors that may have a bearing on the potential uses of a 
license that it may seek in Auction 108, including the availability of 
unassigned white space in any particular market. In addition to the 
typical due diligence considerations encouraged of bidders in all 
auctions, OEA and WTB call particular attention in Auction 108 to 
potential encumbrances due to existing licenses and the Rural Tribal 
Priority Window issues, which may impact the licenses available in 
Auction 108. OEA and WTB note in particular that there will be a 
substantial number of licenses in inventory where the amount of 
unassigned area or frequency that is unassigned is very small. Each 
applicant should carefully consider these issues and the technical and 
economic implications for commercial use of the 2.5 GHz band. The 
Commission makes no representations or warranties about the use of this 
spectrum for particular services, or about the information in 
Commission databases that is furnished by outside parties. Each 
applicant should be aware that a Commission auction represents an 
opportunity to become a Commission licensee, subject to certain 
conditions and regulations. This includes the established authority of 
the Commission to alter the terms of existing licenses by rulemaking, 
which is equally applicable to licenses awarded by auction. A 
Commission auction does not constitute an endorsement by the Commission 
of any particular service, technology, or product, nor does a 
Commission license constitute a guarantee of business success.

III. Further Comment Sought on Bidding Procedures

    7. The Auction 108 Comment Public Notice and the Auction 108 
Further Comment Public Notice sought on procedures for Auction 108, 
including: Auction format; bidding credits for eligible small 
businesses and rural service providers; bidding credit caps; upfront 
payments and bidding eligibility; minimum opening bids and reserve 
prices; activity rules; activity rule waivers and reducing eligibility; 
and information procedures during the auction. In the Auction 108 
Revised Inventory Comment Public Notice, OEA and WTB seek comment on 
whether these procedures need to be adjusted for all licenses in 
Auction 108 in light of additions to the initial license inventory. OEA 
and WTB also seek comment on minimum opening bids and upfront payment 
amounts for the additional licenses in the Auction 108 inventory
    8. Digital Equity and Inclusion. As part of the Commission's 
continuing effort to advance digital equity for all, including people 
of color and others who have been historically underserved,

[[Page 11381]]

marginalized, and adversely affected by persistent poverty and 
inequality, OEA and WTB invite comment on any equity-related 
considerations and benefits (if any) that may be associated with the 
issues discussed in the Auction 108 Revised Inventory Comment Public 
Notice. Specifically, OEA and WTB seek comment on how any bidding 
procedures for Auction 108 as applied to the new licenses included in 
the revised inventory may promote or inhibit advances in diversity, 
equity, inclusion, and accessibility.

IV. Procedural Matters

A. Third Supplemental Initial Regulatory Flexibility Analysis

    9. As required by the Regulatory Flexibility Act of 1980, as 
amended, OEA and WTB prepared a Third Supplemental Initial Regulatory 
Flexibility Analysis (Third Supplemental IRFA) of the possible 
significant economic impact on small entities of the policies and rules 
addressed in the Auction 108 Revised Inventory Comment Public Notice to 
supplement the Regulatory Flexibility Analyses completed in the 2.5 GHz 
Report and Order, Auction 108 Comment Public Notice, Auction 108 
Further Comment Public Notice, and other Commission orders pursuant to 
which Auction 108 will be conducted. Written public comments are 
requested on the Third Supplemental IRFA. Comments must be identified 
as responses to the Third Supplemental IRFA and must be filed by the 
same deadline for comments specified on the first page of the Auction 
108 Revised Inventory Comment Public Notice. OEA and WTB will send a 
copy of the Auction 108 Revised Inventory Comment Public Notice, 
including the Third Supplemental IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA). In addition, the 
Auction 108 Revised Inventory Comment Public Notice and Third 
Supplemental IRFA (or summaries thereof) will be published in the 
Federal Register.
    10. Need for, and Objectives of, the Proposed Rules. The Auction 
108 Revised Inventory Comment Public Notice seeks comment on certain 
procedural rules that may be affected by the new licenses included in 
the revised inventory for Auction 108, which will auction geographic 
overlay licenses of unlicensed spectrum in the 2.5 GHz band (2496-2690 
MHz). This process is intended to provide notice of and adequate time 
for potential applicants to comment on these auction procedures. To 
promote the efficient and fair administration of the competitive 
bidding process for all Auction 108 participants, the Auction 108 
Revised Inventory Comment Public Notice seeks comment on the 
application of auction procedures detailed in the Auction 108 Comment 
Public Notice and the Auction 108 Further Comment Public Notice to the 
new licenses included in the revised inventory.
    11. The procedures for the conduct of Auction 108 on which the 
Auction 108 Revised Inventory Comment Public Notice seeks comment 
constitute the more specific implementation of the competitive bidding 
rules contemplated by 47 CFR parts 1 and 27, the 2.5 GHz Report and 
Order, and relevant competitive bidding orders, and are fully 
consistent therewith.
    12. Legal Basis. The Commission's statutory obligations to small 
businesses under the Communications Act of 1934, as amended, 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 Communications Act of 1934, as amended, including 47 U.S.C. 
154(i), 301, 302, 303(e), 303(f), 303(r), 304, 307, and 309(j). The 
Commission has established a framework of competitive bidding rules, 
updated most recently in 2015, pursuant to which it has conducted 
auctions since the inception of the auctions program in 1994 and would 
conduct Auction 108.
    13. Description and Estimate of the Number of Small Entities to 
Which the Proposed Rules 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 rules and 
policies, if adopted. The RFA generally defines the term small entity 
as having the same meaning as the terms small business, small 
organization, and small governmental jurisdiction. In addition, the 
term small business has the same meaning as the term small business 
concern under the Small Business Act. 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.
    14. As noted above, Regulatory Flexibility Analyses were 
incorporated into the 2.5 GHz Report and Order, the Auction 108 Comment 
Public Notice, and the Auction 108 Further Comment Public Notice. Those 
analyses described in detail the small entities that might be 
significantly affected. In the Auction 108 Revised Inventory Comment 
Public Notice, OEA and WTB hereby incorporate by reference the 
descriptions and estimates of the number of small entities from the 
previous Regulatory Flexibility Analyses in the 2.5 GHz Report and 
Order, the Auction 108 Comment Public Notice, and the Auction 108 
Further Comment Public Notice.
    15. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities. OEA and WTB do not expect 
the processes and procedures described in the Auction 108 Revised 
Inventory Comment Public Notice will require small entities to hire 
attorneys, engineers, consultants, or other professionals to 
participate in Auction 108 and comply with the procedures ultimately 
established because of the information, resources, and guidance the 
Commission makes available to potential and actual participants. For 
example, OEA intends to make information on the bidding system 
available and offer demonstrations and other educational opportunities 
for applicants in Auction 108 to familiarize themselves with the FCC 
auction application system and the auction bidding system, consistent 
with the previously detailed bidding procedures that may be affected by 
new licenses added to the inventory as described in the Auction 108 
Revised Inventory Comment Public Notice. By providing these resources 
as well as the resources discussed below, OEA and WTB expect small 
entities that use the available resources to experience lower 
participation and compliance costs. Nevertheless, while WTB and OEA 
cannot quantify the cost of compliance with the procedures on which 
they seek comment, they do not believe that the costs of compliance 
will unduly burden small entities that choose to participate in the 
auction because the procedures for Auction 108 on which the Auction 108 
Revised Inventory Comment Public Notice seeks comment are similar in 
many respects to the procedures in recent spectrum auctions conducted 
by the Commission.
    16. Steps Taken to Minimize the 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

[[Page 11382]]

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 
such small entities.
    17. OEA and WTB have taken steps to minimize any economic impact of 
the auction procedures on small entities through, among other things, 
the Commission's potential use of previously detailed auction 
procedures under the revised inventory. The Commission received 
comments noting discrepancies in the initial Auction 108 inventory that 
the Commission released with the Auction 108 Comment Pubic Notice. The 
revised inventory will allow all interested parties, including small 
entities, to further evaluate the potential procedures for Auction 108 
in light of the new licenses included in the revised inventory and 
provide small entities with information about the available licenses 
essential to conducting their own due diligence.
    18. OEA and WTB have also taken steps to minimize any economic 
impact of the auction procedures on small entities through, among other 
things, the many resources the Commission provides potential auction 
participants. These resources, which are described in detail in the 
Supplemental IRFA incorporated into the Auction 108 Comment Public 
Notice are provided at no cost and include, for example, access to an 
FCC Auctions Hotline for information about the auction process and 
procedures; an FCC Auctions Technical Support Hotline for technical 
assistance on issues such as access to or navigation within the 
electronic FCC Form 175 and use of the FCC's auction bidding system; a 
web-based, interactive online tutorial produced by Commission staff to 
familiarize applicants with auction procedures, filing requirements, 
bidding procedures, and other matters related to an auction; the 
opportunity to participate in a mock auction; and the opportunity to 
participate in Auction 108 electronically via the internet. 
Additionally, eligible small businesses and rural service providers 
will be able to participate in the bidding credit program for Auction 
108, which may lower their relative costs of participation. In the 
Auction 108 Revised Inventory Comment Public Notice, OEA and WTB 
incorporate by reference the description of the additional steps taken 
to minimize the significant economic impact on small entities, and 
significant alternatives considered, from the Regulatory Flexibility 
Analysis in the Auction 108 Comment Public Notice and Auction 108 
Further Comment Public Notice.
    19. These procedures for the conduct of Auction 108 on which the 
Auction 108 Revised Inventory Comment Public Notice seeks comment 
constitute the more specific implementation of the competitive bidding 
rules contemplated by 47 CFR parts 1 and 27, the 2.5 GHz Report and 
Order, and relevant competitive bidding orders, and are fully 
consistent therewith.
    20. Federal Rules that May Duplicate, Overlap, or Conflict with the 
Proposed Rules. None.

B. Deadlines and Filing Procedures

    21. Pursuant to 47 CFR 1.415(d) and 1.419, interested parties may 
file comments on or before the date indicated on the first page of the 
Auction 108 Revised Inventory Comment Public Notice, in AU Docket No. 
20-429. Comments may be filed using the Commission's Electronic Comment 
Filing System (ECFS) or by filing paper copies.
    22. Ex Parte Requirements. This proceeding has been designated as a 
permit-but-disclose proceeding in accordance with the Commission's ex 
parte rules. Persons making oral ex parte presentations must file a 
copy of any written presentations or memoranda summarizing any oral 
presentation within two business days after the presentation (unless a 
different deadline applicable to the Sunshine Period applies). Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentations must (1) list all persons attending or 
otherwise participating in the meeting at which the ex parte 
presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda, or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to the Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with 47 CFR 1.1206(b). In proceedings governed by 
47 CFR 1.49(f) or for which the Commission has made available a method 
of electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.

Federal Communications Commission.
William Huber,
Associate Chief, Auctions Division, Office of Economics and Analytics.
[FR Doc. 2022-04006 Filed 2-28-22; 8:45 am]
BILLING CODE 6712-01-P