Goto Section: 1.2104 | 1.2106 | Table of Contents
FCC 1.2105
Revised as of October 2, 2015
Goto Year:2014 |
2016
§ 1.2105 Bidding application and certification procedures; prohibition of
certain communications.
Link to an amendment published at 80 FR 56809 , September 18, 2015.
(a) Submission of Short-Form Application (FCC Form 175). In order to be
eligible to bid, an applicant must timely submit a short-form application
(FCC Form 175), together with any appropriate upfront payment set forth by
Public Notice. Beginning January 1, 1999, all short-form applications must
be filed electronically.
(1) All short-form applications will be due:
(i) On the date(s) specified by public notice; or
(ii) In the case of application filing dates which occur automatically by
operation of law (see, e.g., 47 CFR 22.902), on a date specified by public
notice after the Commission has reviewed the applications that have been
filed on those dates and determined that mutual exclusivity exists.
(2) The short-form application must contain the following information:
(i) Identification of each license, or category of licenses, on which the
applicant wishes to bid.
(ii)(A) The applicant's name, if the applicant is an individual. If the
applicant is a corporation, then the short-form application will require the
name and address of the corporate office and the name and title of an
officer or director. If the applicant is a partnership, then the application
will require the name, citizenship and address of all general partners, and,
if a partner is not a natural person, then the name and title of a
responsible person should be included as well. If the applicant is a trust,
then the name and address of the trustee will be required. If the applicant
is none of the above, then it must identify and describe itself and its
principals or other responsible persons; and
(B) Applicant ownership and other information, as set forth in § 1.2112.
(iii) The identity of the person(s) authorized to make or withdraw a bid;
(iv) If the applicant applies as a designated entity pursuant to § 1.2110, a
statement to that effect and a declaration, under penalty of perjury, that
the applicant is qualified as a designated entity under § 1.2110.
(v) Certification that the applicant is legally, technically, financially
and otherwise qualified pursuant to section 308(b) of the Communications Act
of 1934, as amended. The Commission will accept applications certifying that
a request for waiver or other relief from the requirements of section 310 is
pending;
(vi) Certification that the applicant is in compliance with the foreign
ownership provisions of section 310 of the Communications Act of 1934, as
amended;
(vii) Certification that the applicant is and will, during the pendency of
its application(s), remain in compliance with any service-specific
qualifications applicable to the licenses on which the applicant intends to
bid including, but not limited to, financial qualifications. The Commission
may require certification in certain services that the applicant will,
following grant of a license, come into compliance with certain
service-specific rules, including, but not limited to, ownership eligibility
limitations;
(viii) An exhibit, certified as truthful under penalty of perjury,
identifying all parties with whom the applicant has entered into
partnerships, joint ventures, consortia or other agreements, arrangements or
understandings of any kind relating to the licenses being auctioned,
including any such agreements relating to the post-auction market structure.
(ix) Certification under penalty of perjury that 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
pursuant to paragraph (a)(2)(viii) regarding the amount of their bids,
bidding strategies or the particular licenses on which they will or will not
bid.
(x) Certification that the applicant is not in default on any Commission
licenses and that it is not delinquent on any non-tax debt owed to any
Federal agency.
(xi) An attached statement made under penalty of perjury indicating whether
or not the applicant has ever been in default on any Commission license or
has ever been delinquent on any non-tax debt owed to any Federal agency.
Note to paragraph (a): The Commission may also request applicants to submit
additional information for informational purposes to aid in its preparation
of required reports to Congress.
(xii) For auctions required to be conducted under Title VI of the Middle
Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96) or in which
any spectrum usage rights for which licenses are being assigned were made
available under 47 U.S.C. 309(j)(8)(G)(i), certification under penalty of
perjury that the applicant and all of the person(s) disclosed under
paragraph (a)(2)(ii) of this section are not person(s) who have been, for
reasons of national security, barred by any agency of the Federal Government
from bidding on a contract, participating in an auction, or receiving a
grant. For the purposes of this certification, the term “person” means an
individual, partnership, association, joint-stock company, trust, or
corporation, and the term “reasons of national security” means matters
relating to the national defense and foreign relations of the United States.
(b) Modification and Dismissal of Short-Form Application (FCC Form 175). (1)
Any short-form application (FCC Form 175) that does not contain all of the
certifications required pursuant to this section is unacceptable for filing
and cannot be corrected subsequent to the applicable filing deadline. The
application will be dismissed with prejudice and the upfront payment, if
paid, will be returned.
(2) The Commission will provide bidders a limited opportunity to cure
defects specified herein (except for failure to sign the application and to
make certifications) and to resubmit a corrected application. During the
resubmission period for curing defects, a short-form application may be
amended or modified to cure defects identified by the Commission or to make
minor amendments or modifications. After the resubmission period has ended,
a short-form application may be amended or modified to make minor changes or
correct minor errors in the application. Major amendments cannot be made to
a short-form application after the initial filing deadline. Major amendments
include changes in ownership of the applicant that would constitute an
assignment or transfer of control, changes in an applicant's size which
would affect eligibility for designated entity provisions, and changes in
the license service areas identified on the short-form application on which
the applicant intends to bid. Minor amendments include, but are not limited
to, the correction of typographical errors and other minor defects not
identified as major. An application will be considered to be newly filed if
it is amended by a major amendment and may not be resubmitted after
applicable filing deadlines.
(3) Applicants who fail to correct defects in their applications in a timely
manner as specified by public notice will have their applications dismissed
with no opportunity for resubmission.
(4) Applicants shall have a continuing obligation to make any amendments or
modifications that are necessary to maintain the accuracy and completeness
of information furnished in pending applications. Such amendments or
modifications shall be made as promptly as possible, and in no case more
than five business days after applicants become aware of the need to make
any amendment or modification, or five business days after the reportable
event occurs, whichever is later. An applicant's obligation to make such
amendments or modifications to a pending application continues until they
are made.
(c) Prohibition of certain communications. (1) Except as provided in
paragraphs (c)(2), (c)(3), and (c)(4) of this section, after the short-form
application filing deadline, all applicants for licenses in any of the same
geographic license areas are prohibited from cooperating or collaborating
with respect to, discussing with each other, or disclosing to each other in
any manner the substance of their own, or each other's, or any other
competing applicants' bids or bidding strategies, or discussing or
negotiating settlement agreements, until after the down payment deadline,
unless such applicants are members of a bidding consortium or other joint
bidding arrangement identified on the bidder's short-form application
pursuant to § 1.2105(a)(2)(viii).
(2) Applicants may modify their short-form applications to reflect formation
of consortia or changes in ownership at any time before or during an
auction, provided such changes do not result in a change in control of the
applicant, and provided that the parties forming consortia or entering into
ownership agreements have not applied for licenses in any of the same
geographic license areas. Such changes will not be considered major
modifications of the application.
(3) After the filing of short-form applications, applicants may make
agreements to bid jointly for licenses, provided the parties to the
agreement have not applied for licenses in any of the same geographic
license areas.
(4) After the filing of short-form applications, a holder of a
non-controlling attributable interest in an entity submitting a short-form
application may acquire an ownership interest in, form a consortium with, or
enter into a joint bidding arrangement with, other applicants for licenses
in the same geographic license area, provided that:
(i) The attributable interest holder certifies to the Commission that it has
not communicated and will not communicate with any party concerning the bids
or bidding strategies of more than one of the applicants in which it holds
an attributable interest, or with which it has a consortium or joint bidding
arrangement, and which have applied for licenses in the same geographic
license area(s); and
(ii) The arrangements do not result in any change in control of an
applicant; or
(iii) When an applicant has withdrawn from the auction, is no longer placing
bids and has no further eligibility, a holder of a non-controlling,
attributable interest in such an applicant may obtain an ownership interest
in or enter into a consortium with another applicant for a license in the
same geographic service area, provided that the attributable interest holder
certifies to the Commission that it did not communicate with the new
applicant prior to the date that the original applicant withdrew from the
auction.
(5) Applicants must modify their short-form applications to reflect any
changes in ownership or in membership of consortia or joint bidding
arrangements.
(6) A party that makes or receives a communication prohibited under
paragraphs (c)(1) or (8) of this section shall report such communication in
writing immediately, and in any case no later than five business days after
the communication occurs. A party's obligation to make such a report
continues until the report has been made. Such reports shall be filed as
directed in public notices detailing procedures for the bidding that was the
subject of the reported communication. If no public notice provides
direction, the party making the report shall do so in writing to the Chief
of the Auctions and Spectrum Access Division, Wireless Telecommunications
Bureau, by the most expeditious means available, including electronic
transmission such as email.
(7) For purposes of this paragraph:
(i) The term applicant shall include all controlling interests in the entity
submitting a short-form application to participate in an auction (FCC Form
175), 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, and all officers and directors of that entity; and
(ii) The term bids or bidding strategies shall include capital calls or
requests for additional funds in support of bids or bidding strategies.
(8) Prohibition of certain communications for the broadcast television
spectrum incentive auction conducted under section 6403 of the Middle Class
Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96).
(i) For the purposes of the prohibition described in paragraphs (c)(8)(ii)
and (iii) of this section, the term forward auction applicant is defined the
same as the term applicant is defined in paragraph (c)(7) of this section,
and the terms full power broadcast television licensee and Class A broadcast
television licensee are defined the same as those terms are defined in
§ 1.2205(a)(1).
(ii) Except as provided in paragraph (c)(8)(iii) of this section, in the
broadcast television spectrum incentive auction conducted under section 6403
of the Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L.
112-96), beginning on the short-form application filing deadline for the
forward auction and until the results of the incentive auction are announced
by public notice, all forward auction applicants are prohibited from
communicating directly or indirectly any incentive auction applicant's bids
or bidding strategies to any full power or Class A broadcast television
licensee.
(iii) The prohibition described in paragraph (c)(8)(ii) of this section does
not apply to communications between a forward auction applicant and a full
power or Class A broadcast television licensee if a controlling interest,
director, officer, or holder of any 10 percent or greater ownership interest
in the forward auction applicant, as of the deadline for submitting
short-form applications to participate in the forward auction, is also a
controlling interest, director, officer, or governing board member of the
full power or Class A broadcast television licensee, as of the deadline for
submitting applications to participate in the reverse auction.
Note 1 to Paragraph (c): For the purposes of paragraph (c), “controlling
interests” include individuals or entities with positive or negative de jure
or de facto control of the licensee. De jure control includes holding 50
percent or more of the voting stock of a corporation or holding a general
partnership interest in a partnership. Ownership interests that are held
indirectly by any party through one or more intervening corporations may be
determined by successive multiplication of the ownership percentages for
each link in the vertical ownership chain and application of the relevant
attribution benchmark to the resulting product, except that if the ownership
percentage for an interest in any link in the chain meets or exceeds 50
percent or represents actual control, it may be treated as if it were a 100
percent interest. De facto control is determined on a case-by-case basis.
Examples of de facto control include constituting or appointing 50 percent
or more of the board of directors or management committee; having authority
to appoint, promote, demote, and fire senior executives that control the
day-to-day activities of the licensee; or playing an integral role in
management decisions.
Note 2 to Paragraph (c): The prohibition described in paragraph (c)(8)(ii)
of this section applies to controlling interests, directors, officers, and
holders of any 10 percent or greater ownership interest in the forward
auction applicant as of the deadline for submitting short-form applications
to participate in the forward auction, and any additional such parties at
any subsequent point prior to the announcement by public notice of the
results of the incentive auction. Thus, if, for example, a forward auction
applicant appoints a new officer after the short-form application deadline,
that new officer would be subject to the prohibition in paragraph (c)(8)(ii)
of this section, but would not be included within the exception described in
paragraph (c)(8)(iii).
Example: Company A is an applicant in area 1. Company B and Company C each
own 10 percent of Company A. Company D is an applicant in area 1, area 2,
and area 3. Company C is an applicant in area 3. Without violating the
Commission's Rules, Company B can enter into a consortium arrangement with
Company D or acquire an ownership interest in Company D if Company B
certifies either (1) that it has communicated with and will communicate
neither with Company A or anyone else concerning Company A's bids or bidding
strategy, nor with Company C or anyone else concerning Company C's bids or
bidding strategy, or (2) that it has not communicated with and will not
communicate with Company D or anyone else concerning Company D's bids or
bidding strategy.
[ 63 FR 2341 , Jan. 15, 1998, as amended at 63 FR 29958 , June 2, 1998; 63 FR 50799 , Sept. 23, 1998; 64 FR 59659 , Nov. 3, 1999; 65 FR 52345 , Aug. 29,
2000; 66 FR 54452 , Oct. 29, 2001; 71 FR 15619 , Mar. 29, 2006; 71 FR 26251 ,
May 4, 2006; 72 FR 48843 , Aug. 24, 2007; 75 FR 4702 , Jan. 29, 2010; 75 FR 9797 , Mar. 4, 2010; 78 FR 50254 , Aug. 16, 2013; 79 FR 48529 , Aug. 15, 2014]
Effective Date Note: At 79 FR 48529 , Aug. 15, 2014, § 1.2105 was amended by
revising paragraphs (a)(2)(i), (a)(2)(xii), and (c)(6), and adding paragraph
(c)(8) and notes 1 and 2 to paragraph (c). The amendments to
§ 1.2105(a)(2)(xii) and (c)(6) contain information collection and
recordkeeping requirements and will not become effective until approval has
been given by the Office of Management and Budget.
return arrow Back to Top
Goto Section: 1.2104 | 1.2106
Goto Year: 2014 |
2016
CiteFind - See documents on FCC website that
cite this rule
Want to support this service?
Thanks!
Report errors in
this rule. Since these rules are converted to HTML by machine, it's possible errors have been made. Please
help us improve these rules by clicking the Report FCC Rule Errors link to report an error.
hallikainen.com
Helping make public information public