**DA 08-2150**

**September 30, 2008**

**Auction of LPTV and TV Translator Digital Companion Channels**

###### Status of Short-Form Applications to Participate in Auction 85;  {#status-of-short-form-applications-to-participate-in-auction-85 .unnumbered}

###### Removal of MX Group from Auction Inventory {#removal-of-mx-group-from-auction-inventory .unnumbered}

**Report No. AUC-08-85-G (Auction 85)**

1.  The Wireless Telecommunications Bureau ("WTB") and the Media Bureau
    ("MB") (collectively the "Bureaus") have accepted for filing 68
    short-form applications (FCC Forms 175) to participate in the
    upcoming auction of construction permits for Low Power Television
    (LPTV), including Class A Television (TV), and TV Translator digital
    companion channels. This auction, which is designated as Auction 85,
    is scheduled to begin on Wednesday, November 5, 2008.[^1] Auction 85
    will offer 43 construction permits for specified LPTV, including
    Class A TV, and TV Translator digital companion channels. The
    construction permits to be auctioned are the subjects of pending
    mutually exclusive engineering proposals. This Public Notice
    announces the status of applications received for Auction 85,
    removes one group of mutually-exclusive proposals ("MX group") from
    the auction inventory, and provides other important information and
    reminders relating to the auction.

# Short-Form Applications and upfront payments

## Status of Short-Form Applications 

2.  The short-form applications for Auction 85 have been reviewed for
    completeness and compliance with the Commission's rules, and have
    been classified into the categories listed below.

**Complete** **35 applications**

**Incomplete** **33 applications**

**Rejected** **1 application**

3.  **Complete Applications.** Attachment A to this Public Notice lists
    the short-form applications for Auction 85 that are complete.[^2]
    These applicants will become qualified bidders in Auction 85 upon
    receipt of the required upfront payment **by 6:00 p.m. Eastern Time
    (ET) on Friday, October 10, 2008**.[^3] Applicants also must
    maintain the accuracy of their short-form applications as required
    by Section 1.65 of the Commission's rules.[^4]

4.  **Incomplete Applications.** Attachment B to this Public Notice
    lists the short-form applications for Auction 85 found to be
    incomplete or otherwise deficient. These applicants will receive
    overnight correspondence indicating what information is required to
    make their applications complete. These applicants may become
    qualified bidders only if they timely take the following
    actions: (1) make the required upfront payments **by 6:00 p.m. ET on
    Friday, October 10, 2008**; and (2) resubmit their applications,
    having corrected the deficiencies indicated, **prior to 6:00 p.m. ET
    on Friday, October 10, 2008**.[^5] Applicants also must maintain the
    accuracy of their short-form applications as required by Section
    1.65 of the Commission's rules.[^6]

5.  The filing window for resubmitting Auction 85 short-form
    applications is now open. Corrected applications must be filed
    **prior to** **6:00 p.m. ET on Friday, October 10, 2008.** This will
    be the only opportunity to cure application defects. Late
    resubmissions will not be accepted. If an application is incomplete
    or otherwise deficient after the resubmission deadline has passed,
    the applicant will not be permitted to participate in bidding.

6.  **Rejected Application/Removal of MX Group**. The engineering
    proposal of Rafael Fernandez for a digital companion channel on
    channel 44 at Ellensburg, Washington, is returned as unacceptable
    for filing because his noncommercial educational ("NCE") proposal
    was mutually exclusive with a proposal by an applicant for a
    commercial facility.[^7] For this reason, Mr. Fernandez's
    application is returned, and he will not be permitted to participate
    in this auction.[^8]

## Upfront Payments 

7.  Upfront payments and accompanying FCC Remittance Advice forms (FCC
    Form 159) for Auction 85 are due **by 6:00 p.m. ET on Friday,
    October 10, 2008.** In order to meet the Commission's upfront
    payment deadline, an applicant's payment must be credited to the
    Commission's account by the deadline.[^9] **Payments must be made by
    wire transfer only in accordance with the instructions provided in
    the *Auction 85 Procedures Public Notice*.**[^10] **No other payment
    method is acceptable for this auction.**[^11] Applicants are
    reminded to provide their FCC Registration Number ("FRN") on the FCC
    Form 159 and to submit the same FRN with all future payments for
    Auction 85. At least one hour before placing the order for the wire
    transfer (but on the same business day), applicants must fax a
    completed FCC Form 159 (revised July 2005) to U.S. Bank at (314)
    418-4232.

8.  Applicants are responsible for obtaining confirmation from their
    financial institution that the Commission has timely received their
    upfront payment and deposited it in the proper account. The Bureaus
    remind applicants that they should discuss arrangements (including
    transfer times and bank closing schedules) with their financial
    institution several days before making the wire transfer so as to
    avoid untimely upfront payments. Applicants should allow sufficient
    time for the transfer to be initiated and completed before the
    deadline. Detailed information regarding upfront payments, including
    additional requirements for "former defaulters," can be found in the
    *Auction 85 Procedures Public Notice* under Section III.C.[^12]

9.  Applicants that have filed applications deemed to be incomplete or
    otherwise deficient, as noted in Attachment B to this Public Notice,
    must submit timely and sufficient upfront payments before the
    Commission will review their resubmitted applications. If no upfront
    payment is made, or the application is incomplete or otherwise
    deficient following its resubmission, the applicant will not be
    eligible to bid.

## Short-Form Application Changes and Resubmission

10. Applicants whose applications for Auction 85 have been identified as
    incomplete must address defects in their applications during the
    resubmission window (which is now open and closes at 6:00 p.m. ET on
    Friday, October 10, 2008).[^13] The Bureaus are sending a letter to
    each applicant whose application has been deemed incomplete
    identifying the deficiencies found during the staff's initial review
    of the application. These deficiency letters are being sent via
    overnight delivery to the contact person and contact address listed
    on each incomplete application.

11. During this resubmission window, all applicants may make other minor
    changes as described below in more detail. We remind applicants that
    Section 1.65 of the Commission's rules requires an applicant to
    maintain the accuracy and completeness of information furnished in
    its pending short-form application.[^14] Applicants should amend
    their short-form applications as promptly as possible, but no later
    than ten business days from the occurrence of a reportable change.
    Applicants must modify their short-form application electronically.
    Applicants seeking to report changes outside of those time periods
    in which short-form applications are accessible electronically must
    submit a letter briefly summarizing the changes by electronic mail
    to the attention of Margaret Wiener, Chief, Auctions and Spectrum
    Access Division, at the following address: <auction85@fcc.gov>.
    Questions about changes should be directed to the Auctions and
    Spectrum Access Division at (202) 418-0660.

12. The electronic Form 175 will not permit an applicant to make certain
    modifications to its application (e.g., changes to applicant's name,
    legal classification, permit selections or certifying official, or
    changes in its bidding credit).[^15] Administrative and minor
    changes can be made, including, for example, deletion and addition
    of authorized bidders (to a maximum of three), revision of addresses
    and telephone numbers of the applicants and their contact persons,
    and changes to responsible party. In addition, changes can be made
    to ownership and agreement information.[^16] We remind applicants
    that any application changes must comply with the Commission's
    rules, which prohibit, among other things*,* changes in ownership
    that would constitute an assignment or transfer of control, as well
    as changes in ownership or disclosure of agreements that would
    constitute violations of the anti-collusion rule.[^17] If any
    application is changed to effect a major amendment, such as a change
    in control, the applicant will be ineligible to bid in the auction.

# OTHER IMPORTANT auction 85 INFORMATION

13. **Qualified Bidders.** Approximately two weeks after the upfront
    payment deadline, following Commission review of resubmitted
    short-form applications, and correlation of payments and
    applications, a public notice listing all applicants qualified to
    bid in Auction 85 will be released.[^18] The same public notice will
    also include bidding schedules for both the mock auction and the
    first day of bidding.

14. **Due Diligence.** Potential bidders are solely responsible for
    investigating and evaluating all technical and marketplace factors
    that may have a bearing on the value of the broadcast facilities
    being offered in Auction 85. The Commission makes no representations
    or warranties about the use of this spectrum for particular
    services. The inclusion of an engineering proposal in the Auction 85
    inventory does not mean that the proposal can be implemented. The
    Commission has reviewed engineering proposals only for the limited
    purpose of determining MX, and has not made any determinations as to
    their grantability. We strongly encourage potential bidders to
    conduct their own research prior to the beginning of bidding in
    order to determine the existence of pending proceedings, pleadings,
    applications, or authorizations that might affect their decisions
    regarding participation in the auction. For example, the Commission
    is now considering adoption of an order that would address issues
    with respect to the low power television digital transition.[^19] We
    also reminded bidders in the *Auction 85 Procedures Public Notice*
    that the Commission recently lifted the freeze on the filing of
    applications for displacement relief and major changes for Class A
    stations.[^20] In addition, Auction 85 applicants should also note
    that, in MB Docket 07-294, the Commission sought comment on a
    proposal by Mullaney Engineering, Inc., to reallocate TV Channels 5
    and 6 for FM broadcasting.[^21] In that proceeding, the Broadcast
    Maximization Committee (BMC) filed a request to adopt a freeze on
    the filing of applications and rule making petitions to utilize
    television Channels 5 and 6 pending the outcome of the
    proceeding.[^22] BMC has also filed a request to remove MX Group 283
    from Auction 85, arguing that such action is necessary to ensure
    that channels 5 and 6 remain available for future FM use as proposed
    in MB Docket 07-294.[^23] These matters are pending before the
    Commission. Participants should continue such research throughout
    the auction. In addition, potential bidders should perform technical
    analyses sufficient to assure themselves that, should they prevail
    in competitive bidding for a specific construction permit, they will
    be able to build and operate facilities that will comply fully with
    the Commission\'s technical and legal requirements. For further
    details regarding due diligence, please refer to the *Auction 85
    Procedures Public Notice* under Section I.B.3.[^24]

15. **Prohibition of Collusion.** The Bureaus remind applicants that
    Sections 1.2105(c) and 73.5002(d) of the Commission's rules prohibit
    applicants from communicating with each other about bids, bidding
    strategies, or settlements, which may include communications
    regarding the post-auction market structure, unless they have
    identified each other on their short-form applications as parties
    with which they have entered into agreements under Section
    1.2105(a)(2)(viii).[^25] The anti-collusion prohibition applies to
    applicants in this auction with an engineering proposal within the
    same mutually-exclusive (MX) group. An applicant is prohibited from
    communicating not only about its own bid or bidding strategy, but
    also from communicating about another applicant's bid or bidding
    strategy. Moreover, if two applicants are mutually-exclusive in one
    MX group, these two applicants must not communicate about a bid,
    bidding strategy, or settlement for any MX group.[^26]

16. The collusion prohibition is effective as of the short-form
    application filing deadline, which for Auction 85 was June 30, 2006,
    at 6:00 p.m. ET, and extends until the post-auction down payment
    deadline, which will be announced in a public notice released
    shortly following close of bidding.[^27] **The prohibition applies
    to all applicants regardless of whether such applicants become
    qualified bidders, submit an upfront payment, or actually
    bid.**[^28]

17. We also emphasize that, for purposes of this prohibition, an
    "applicant" includes all officers and directors of the entity
    submitting a short-form application, all controlling interests of
    that entity, and 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.[^29] Thus, for example,
    a violation of the anti-collusion rule could occur when an
    individual serves as an officer and/or director for two or more
    competing applicants that have not disclosed an agreement on both
    short-form applications.[^30] Therefore, applicants should continue
    to take precautionary steps to prevent prohibited communications
    between any of the entities or persons described covered by the
    prohibition.[^31]

18. **Disclosure Obligations and Possible Sanctions***.* Section 1.65
    requires auction applicants that engage in communications of bids or
    bidding strategies that may themselves be prohibited, and that
    result in an agreement, arrangement, or understanding not already
    identified on their short-form applications, to promptly disclose
    any such agreement, arrangement, or understanding to the Commission
    by amending their pending applications.[^32] In addition, Section
    1.2105(c)(6) requires all auction applicants to report prohibited
    discussions or disclosures regarding bids or bidding strategy to the
    Commission in writing immediately, but in no case later than five
    business days after the communication occurs, even if the
    communication does not result in an agreement or understanding
    regarding bids or bidding strategy that must be reported under
    Section 1.65.[^33] The Commission has clarified that each
    applicant's obligation to report any such communication continues
    beyond the five-day period after the communication is made, even if
    the report is not made within the five-day period.[^34]

19. Parties reporting communications must take care to ensure that any
    such reports of prohibited communications do not themselves give
    rise to a violation of the anti-collusion rule. For example, a
    party's report of a prohibited communication could violate the rule
    by communicating prohibited information to other applicants through
    the use of Commission filing procedures that would allow such
    materials to be made available for public inspection.[^35] A party
    seeking to report such prohibited communications should consider
    submitting its report with a request that the report or portions of
    the submission be withheld from public inspection.[^36] Such parties
    are also encouraged to consult with the Auctions and Spectrum Access
    Division staff if they have any questions about the procedures for
    submitting such reports.[^37] The *Auction 85 Procedures Public
    Notice* provides additional guidance on procedures for submitting
    application-related information.[^38]

20. Applicants that are winning bidders will be required to disclose in
    their long-form applications the specific terms, conditions, and
    parties involved in all bidding consortia, joint ventures,
    partnerships, or other agreements or arrangements entered into
    relating to the competitive bidding process.[^39] Any applicant
    found to have violated the anti-collusion rule may be subject to
    sanctions.[^40] In addition, we remind applicants that they are
    subject to the antitrust laws, which are designed to prevent
    anti-competitive behavior in the marketplace. If an applicant is
    found to have violated the antitrust laws in connection with its
    participation in the competitive bidding process, it may be subject
    to forfeiture of its upfront payment, down payment, or full bid
    amount, and may be prohibited from participating in future
    auctions.[^41]

21. **Ex Parte Rule.** Applicants should also be aware that the
    Commission has generally exempted auction proceedings from the
    strict requirements of the ex parte rule found in Section 1.1208 of
    the Commission's rules.[^42]

22. **Mock Auction.** All applicants found to be qualified bidders will
    be eligible to participate in a mock auction on Monday, November
    3, 2008. The Bureaus encourage all qualified bidders to take
    advantage of this opportunity to become familiar with the FCC's
    Integrated Spectrum Auction System ("ISAS" or "FCC Auction System").
    In the public notice announcing the qualified bidders, the Bureaus
    will announce the bidding schedule for the mock auction. The mock
    auction will be conducted over the Internet, and telephonic bidding
    will be available as well.

23. **Electronic Bidding.** Applicants are reminded that qualified
    bidders are eligible to bid either electronically or telephonically.
    Applicants should specify their bidding preference on the FCC Form
    175, if they have not already done so.

24. Bidders can access the FCC Auction System over the Internet. Access
    to the system via the Internet requires, at a minimum, the following
    software:

[]{.mark}

-   Web Browser, either of the following:

> Microsoft^®^ Internet Explorer 6.0 or higher (recommended). Your
> browser must have either Microsoft VM or Java Plug-In Version 1.5
> installed.
>
> Mozilla^®^ Firefox^®^ 2.0 or higher, with Java Plug-In Version 1.5.
>
> To obtain Java Plug-In Version 1.5, point your browser at
> <http://java.sun.com/javase/downloads/index_jdk5.jsp> and click the
> **Download** button for the *Java Runtime Environment (JRE) 5.0*
> option.

-   PDF Viewer: Adobe Acrobat Reader 5.0 or higher (available at
    [http://www.adobe.com](http://www.adobe.com/))

-   Minimum Screen Resolution: 1024 x 768

25. Currently, the Apple^®^ Mac OS^®^ is not supported.

26. **Post-Auction Procedures.** Shortly after bidding has ended, the
    Commission will issue a public notice declaring the auction closed,
    identifying the winning bidders, and establishing the deadlines for
    submitting down payments and final payments.[^43] Winning bidders
    must submit electronically a properly completed long-form
    application (FCC Forms 301-CA or 346) and required exhibits for each
    construction permit won through Auction 85. Further filing
    instructions will be provided to auction winners at the close of the
    auction.

# CONTACT INFORMATION

27. For specific questions about an applicant's incomplete status, the
    applicant should contact the staff reviewer identified in the
    correspondence sent to the applicant by overnight mail.

28. For further information concerning Auction 85, contact:

+-----------------------------------+----------------------------------+
| **General Auction 85              | **FCC Auctions Hotline**         |
| Information**                     |                                  |
|                                   | \(888\) 225-5322, option two; or |
| > General Auction Questions       |                                  |
| >                                 | \(717\) 338-2868                 |
| > Auction Process and Procedures  |                                  |
|                                   | Hours of service: 8:00 a.m. --   |
|                                   | 5:30 p.m. ET,                    |
|                                   |                                  |
|                                   | Monday through Friday            |
|                                   |                                  |
|                                   | **Auctions and Spectrum Access   |
|                                   | Division**                       |
|                                   |                                  |
|                                   | **(202) 418-0660**               |
|                                   |                                  |
|                                   | Roy Knowles or Linda Sanderson   |
+-----------------------------------+----------------------------------+
| **FCC Auction System              | **FCC Technical Support          |
| Information**                     | Hotline**                        |
|                                   |                                  |
|                                   | \(877\) 480-3201, option nine;   |
|                                   | or                               |
|                                   |                                  |
|                                   | \(202\) 414‑1250; or (202)       |
|                                   | 414-1255 (TTY)                   |
|                                   |                                  |
|                                   | Hours of service: 8:00 a.m. --   |
|                                   | 6:00 p.m. ET,                    |
|                                   |                                  |
|                                   | Monday through Friday            |
|                                   |                                  |
|                                   | All calls to the FCC Technical   |
|                                   | Support Hotline are recorded.    |
+-----------------------------------+----------------------------------+
| **Auction 85 Legal Information**  | **Auctions and Spectrum Access   |
|                                   | Division**                       |
| > Auction Rules, Policies,        |                                  |
| > Regulations                     | **(202) 418-0660**               |
|                                   |                                  |
|                                   | Lynne Milne                      |
|                                   |                                  |
|                                   | Howard Davenport                 |
+-----------------------------------+----------------------------------+
| **Auction Payments**              | **Auctions Accounting Group**    |
|                                   |                                  |
| > Instructions for Wiring Upfront | **(202) 418-0578**               |
| > Payments                        |                                  |
|                                   | Gail Glasser                     |
+-----------------------------------+----------------------------------+
| **Licensing Information**         | **Video Division**               |
|                                   |                                  |
| > Service Rules, Policies,        | **(202) 418-1600**               |
| > Regulations                     |                                  |
| >                                 | Shaun Maher or Hossein           |
| > Licensing Issues, Engineering   | Hashemzadeh                      |
| > Issues                          |                                  |
| >                                 |                                  |
| > Due Diligence, Incumbency       |                                  |
| > Issues                          |                                  |
+-----------------------------------+----------------------------------+

29. To request materials in accessible formats (Braille, large print,
    electronic files, audio format) for people with disabilities, send
    an e-mail to <fcc504@fcc.gov> or call the Consumer and Governmental
    Affairs Bureau at (202) 418-0530 or (202) 418-0432 (TTY).

**--FCC--**

[^1]: *See* "Auction of LPTV and TV Translator Digital Companion
    Channels Scheduled for November 5, 2008; Notice and Filing
    Requirements, Minimum Opening Bids, Upfront Payments and Other
    Procedures for Auction 85," *Public Notice*, DA 08-1944 (September
    2, 2008) ("*Auction 85 Procedures Public Notice*").

[^2]: Designation of an application as complete indicates that the
    applicant has provided the certifications and basic information
    concerning its qualifications as required by our competitive bidding
    rules for participation in the auction. The Bureaus note that under
    the Commission's two-phased auction application process, a winning
    bidder must submit a long-form application after the close of the
    auction to demonstrate its qualifications to hold a Commission
    license or permit and, if a bidding credit is requested, its
    eligibility for the bidding credit requested. *See* 47 C.F.R. §§
    1.2107 -- 1.2109; *see also* Amendment of Part 1 of the Commission's
    Rules -- Competitive Bidding Procedures, *Second Report and Order*,
    9 FCC Rcd 2348, 2376-77 ¶¶ 163-168 (1994). Thus, a determination
    that a short-form application is complete and complies with the
    Commission's competitive bidding rules and policies is not
    determinative of an applicant's qualifications to hold a license or
    permit or of entitlement to a bidding credit. In the event that an
    applicant is found unqualified to be a Commission licensee or
    permittee or ineligible for claimed designated entity benefits, it
    will be liable for any obligations incurred as a result of its
    participation in the auction. *See generally* 47 C.F.R. § 1.2109.

[^3]: *See* 47 C.F.R. § 1.2106.

[^4]: *See* 47 C.F.R. § 1.65. Section 1.65 requires applicants to report
    any changes of decisional significance to their applications "as
    promptly as possible." With respect to short-form applications or
    any other auction-related matters, applicants must amend their
    short-form applications no later than ten business days from the
    occurrence of a reportable change. The Bureaus believe that this
    requirement is reasonable in the context of an auction where time
    periods are much shorter than most other Commission proceedings.
    *See also* 47 C.F.R. § 1.2105 (c)(6) (any applicant that makes or
    receives a prohibited communication must report such communication
    in writing to the Commission no later than five business days after
    the communication occurs).

[^5]: *See* 47 C.F.R. §§ 1.2105(b), 1.2106.

[^6]: *See* 47 C.F.R. § 1.65. *See also* 47 C.F.R. § 1.2105.

[^7]: *See* 47 C.F.R. § 73.5002(b); *see also* Reexamination of the
    Comparative Standard for Noncommercial Educational Applicants, MM
    Docket No. 95-31, *Second Report and Order*, 18 FCC Rcd 6691, 6700
    ¶¶ 21-22 (2003), reconsideration order adopted.

[^8]: Applications for noncommercial educational (NCE) broadcast
    stations on nonreserved spectrum, filed during a filing window, will
    be returned as unacceptable for filing if mutually exclusive with
    any application for a commercial station. The Commission has
    determined that short-form applicants that do not identify on their
    FCC Form 175 the proposed station's programming as noncommercial
    educational will be considered, as a matter of law, applicants for
    commercial broadcast stations. *Id.*, 18 FCC Rcd at 6700 ¶¶ 21-22.
    The remaining engineering proposal for Ellensburg, Washington, in MX
    Group MX291, now has become a singleton proposal. The Kittitas
    County TV Improvement District \# 1 will be sent a letter in the
    near future about its singleton proposal.

[^9]: *See* Letter from Margaret W. Wiener, Chief, Auctions and Industry
    Analysis Div., to Patrick Shannon, Esq., Counsel for Lynch 3G
    Communications Corp., 18 FCC Rcd 11,552 (Auc. Div. 2003) (finding
    that an applicant had failed to timely submit its upfront payment
    when the payment was received by the Commission's bank before the
    applicable deadline, but not credited to the Commission's account
    until after the deadline due to an error of the applicant's bank).

[^10]: *See Auction 85 Procedures Public Notice* at ¶¶ 47-58. A wire
    transfer is a transaction that you initiate through your bank. It
    authorizes your bank to wire funds from your account to the
    Commission's account. Additional information on wire transfers is
    available on the Commission's web site at
    <http://www.fcc.gov/fees/wiretran.html>.

[^11]: The Commission will not accept checks, credit cards, or automated
    clearing house ("ACH") payments.

[^12]: *See Auction 85 Procedures Public Notice* at ¶¶ 47-60.

[^13]: 47 C.F.R. § 1.2105(b)(2).

[^14]: 47 C.F.R. § 1.65. *See also* 47 C.F.R. § 1.2105.

[^15]: 47 C.F.R. § 1.2105(b). The Commission's electronic Form 175 is
    designed to prevent inadvertent major changes by applicants.
    Therefore, applicants are not permitted to make changes to the
    following data fields at this time: applicant name, legal
    classification, certifier, bidding credit, and permit selection.

[^16]: For more information on making administrative changes to an
    existing application, see "Minor Modifications to Short-Form
    Applications" and "Maintaining Current Information in Short-Form
    Applications" in the *Auction 85 Procedures Public Notice*, ¶¶ 34-
    41. During the resubmission phase, applicants will have electronic
    access to update the following application fields: jurisdiction of
    formation/country of citizenship, applicant address, responsible
    party information, responsible party address, contact information,
    contact address, authorized bidder information, bidding option
    (telephonic or electronic), agreement information, and ownership
    information. During all phases of the application process,
    applicants have electronic access to make certain administrative
    changes including updates to applicant address, responsible party
    address, contact information, contact address, and bidding option
    (telephonic or electronic).

[^17]: *See* 47 C.F.R. § 1.2105.

[^18]: In Auction 85, when two or more short-form applications (FCC
    Forms 175) are accepted for filing that have engineering proposals
    included within the same mutually-exclusive (MX) group, mutual
    exclusivity exists for auction purposes. Once mutual exclusivity
    exists for auction purposes, an applicant with an engineering
    proposal within that MX group must submit a bid in order to obtain
    the construction permit for that MX group.

[^19]: *See* "FCC Announces Tentative Agenda for October 15^th^ Open
    Meeting," *News Release* (rel. Sept 25, 2008). The Commission
    initially adopted rules concerning the digital transition of these
    services in 2004. *See* Amendment of Parts 73 and 74 of the
    Commission's Rules to Establish Rules for Digital Low Power
    Television, Television Translator, and Television Booster Stations
    and to Amend Rules for Digital Class A Television Stations, *Report
    and Order*, 19 FCC Rcd 19331 (2004), recons. pending.

[^20]: *Auction 85 Procedures Public Notice* at n.52; *see also*
    "Commission Lifts the Freeze on the Filing of Certain Class A
    Television Applications Effective August 4, 2008," Public Notice, DA
    08-1644 (rel. July 14, 2008).

[^21]: *See* Promoting Diversification of Ownership In the Broadcasting
    Services, *Report and Order and Third Further Notice of Proposed
    Rule Making*, FCC 07-217, ¶ 100 (rel. March 5, 2008).

[^22]: *See* BMC's "Request for Filing Freeze" filed August 29, 2008 in
    MB Docket No. 07-294.

[^23]: *See* BMC's "Request for Removal of MX Group 283" filed September
    10, 2008 in AU Docket No. 08-22.

[^24]: *See Auction 85 Procedures Public Notice* at ¶¶ 19-25.

[^25]: 47 C.F.R. §§ 1.2105(a)(2)(viii), 1.2105(c)(1). *See also*
    Amendment of Part 1 of the Commission's Rules --- Competitive
    Bidding Procedures, WT Docket No. 97-82, *Seventh Report and Order*,
    16 FCC Rcd 17,546 (2001) ("*Part 1 Seventh Report and Order*");
    *Order on Reconsideration of the Third Report and Order*, *Fifth
    Report and Order*, *and Fourth Further Notice of Proposed Rule
    Making*, 15 FCC Rcd 15,293, 15,297-98 ¶¶ 7-8 (2000).

[^26]: For a more detailed discussion of anti-collusion considerations
    in the context of Auction 85, *see* *Auction 85 Procedures Public
    Notice* at ¶¶ 8-18. *See also* "Wireless Telecommunications Bureau
    Clarifies Spectrum Auction Anti-Collusion Rules," *Public Notice*,
    11 FCC Rcd 9645 (1995) ("*Anti-Collusion Public Notice*").

[^27]: 47 C.F.R. § 1.2105(c)(1).

[^28]: For example, the Commission imposed a forfeiture in the amount of
    \$100,000 for violation of the anti-collusion rule, even though the
    applicant never made an upfront payment for the auction and was not
    listed as a qualified bidder. *See* Northeast Communications of
    Wisconsin, LLC, *Forfeiture Order*, 19 FCC Rcd 18,635 (2004). The
    Commission subsequently reduced the amount of the forfeiture to
    \$75,000 on account of the parties' history of compliance with
    Commission rules. *See* Star Wireless, LLC and Northeast
    Communications of Wisconsin, Inc., *Order on Review*, 22 FCC Rcd
    8943 (2007), *review denied*, *Star Wireless, LLC v. FCC*, 522 F.3d
    469 (D.C. Cir. 2008) (anti-collusion rule applies to applicants
    regardless of whether they are qualified to bid). The United States
    District Court for the Eastern District of Wisconsin recently
    granted summary judgment in favor of the United States pursuant to
    an effort by the Department of Justice to enforce the forfeiture.
    United States v. Northeast Communications of Wisconsin, LLC,
    *Decision and Order*, Case No. 07-C-715 (June 25, 2008). *See also*
    Letter to Robert Pettit, Esq., from Margaret W. Wiener, Chief,
    Auctions and Industry Analysis Div., 16 FCC Rcd 10,080 (Auc. Div.
    2000) (declining to exempt an applicant's controlling interest from
    coverage by the anti-collusion rule, even though the applicant never
    made an upfront payment for the auction and was not listed as a
    qualified bidder).

[^29]: 47 C.F.R. § 1.2105(c)(7)(i).

[^30]: *See* Lotus Communications Corporation, *Order*, DA-08-1364 (WTB
    rel. Jun 9, 2008); Letter to Colby M. May from Barbara A. Kreisman
    and Margaret W. Wiener, 20 FCC Rcd 14,648 (Video & Auc. Divs. 2005)
    (finding apparent violation of anti-collusion rule where applicants
    with mutually exclusive applications reported sharing same
    individual as an officer and director and reported no agreement).

[^31]: *See* Application of Nevada Wireless for a License to Provide 800
    MHz Specialized Mobile Radio Service in the Farmington, NM-CO
    Economic Area (EA-155) Frequency Band A, *Memorandum Opinion and
    Order*, DA 98-1137, 13 FCC Rcd 11,973, 11,977 ¶ 11 (WTB 1998). The
    Bureau cautioned that the mere existence of precautionary measures
    will not outweigh specific evidence that collusive behavior has
    occurred, nor will it preclude the initiation of an investigation
    when warranted. *Id*. at 11,977-78 ¶ 13.

[^32]: *See Part 1* *Seventh Report and Order*, 16 FCC Rcd at 17,550-51
    ¶ 9. Section 1.65 of the Commission's rules requires an applicant to
    maintain the accuracy and completeness of information furnished in
    its pending application and to notify the Commission within 30 days
    of any substantive change that may be of decisional significance to
    that application. 47 C.F.R. § 1.65.

[^33]: 47 C.F.R. § 1.2105(c)(6); *see also Part 1* *Seventh Report and
    Order*, 16 FCC Rcd at 17,555 ¶ 17.

[^34]: *See* Service Rules for the 698-746, 747-762 and 777-792 MHz
    Bands, WT Docket No. 06-150, *Second Report* *and Order*, FCC
    07-132, 22 FCC Rcd 15,289, 15,403-04 ¶¶ 285-86 (2007).

[^35]: *Auction 85 Procedures Public Notice* at ¶ 17.

[^36]: *See* 47 C.F.R. § 0.459 (procedures for requesting that materials
    or information submitted to the Commission be withheld from public
    inspection). If an applicant requests confidential treatment of a
    document, the cover page of the filing must prominently display that
    the applicant is seeking confidential treatment for that document.
    For example, a filing might include a cover page stamped with
    "Request for Confidential Treatment Attached" or "Not for Public
    Inspection." Any such request must cover all of the material to
    which the request applies. *See* 47 C.F.R. § 0.459(a).

[^37]: *See* Section III. "Contact Info" below.

[^38]: *See* *Auction 85 Procedures Public Notice* at ¶¶ 34-41.

[^39]: *See* 47 C.F.R. § 1.2107(d).

[^40]: *See* 47 C.F.R. §§ 1.2105(c), 1.2107(d), and 1.2109(d).

[^41]: 47 C.F.R. § 1.2109(d).

[^42]: *See* 47 C.F.R. § 1.1208. *See also* "Commission Announces that
    Mutually Exclusive 'Short-Form' Applications (Form 175) to
    Participate in Competitive Bidding Process ('Auctions') Are Treated
    as Exempt for *Ex Parte* Purposes," *Public Notice*, 9 FCC Rcd 6760
    (1994). *See also* 47 C.F.R. § 1.1202(d)(1) Note 1.

[^43]: For more detail, see *Auction 85 Procedures Public Notice* at ¶¶
    111-120.