**DA 04-1699**

**June 10, 2004**

**AUCTION OF FM BROADCAST**

**CONSTRUCTION PERMITS**

**SCHEDULED FOR NOVEMBER 3, 2004**

[]{.mark}

**Notice and Filing Requirements, Minimum Opening Bids,**

**Upfront Payments and Other Auction Procedures**

**Report No. AUC-04-37-K (Auction No. 37)**

I. GENERAL INFORMATION [2](#i.-general-information)

A. Introduction [2](#introduction)

1\. Background [2](#background)

2\. Construction Permits to Be Auctioned
[2](#construction-permits-to-be-auctioned)

B. Rules and Disclaimers [2](#rules-and-disclaimers)

1\. Relevant Authority [2](#relevant-authority)

2\. Prohibition of Collusion [2](#prohibition-of-collusion)

3\. Due Diligence [2](#due-diligence)

4\. Bidder Alerts [2](#bidder-alerts)

5\. National Environmental Policy Act (NEPA) Requirements
[2](#national-environmental-policy-act-nepa-requirements)

C. Auction Specifics [2](#auction-specifics)

1\. Auction Date [2](#auction-date)

2\. Auction Title [2](#auction-title)

3\. Bidding Methodology [2](#bidding-methodology)

4\. Pre-Auction Dates and Deadlines
[2](#pre-auction-dates-and-deadlines)

5\. Requirements for Participation [2](#requirements-for-participation)

6\. General Contact Information [2](#general-contact-information)

II\. SHORT-FORM (FCC FORM 175) APPLICATION REQUIREMENTS
[2](#ii.-short-form-fcc-form-175-application-requirements)

A. Permit Selection [2](#permit-selection)

B. Ownership Disclosure Requirements (FCC Form 175 Exhibit A)
[2](#ownership-disclosure-requirements-fcc-form-175-exhibit-a)

C. Consortia and Joint Bidding Arrangements (FCC Form 175 Exhibit B)
[2](#consortia-and-joint-bidding-arrangements-fcc-form-175-exhibit-b)

D. New Entrant Bidding Credit (FCC Form 175 Exhibit C)
[2](#d.-new-entrant-bidding-credit-fcc-form-175-exhibit-c)

1\. Eligibility [2](#eligibility)

2\. Application Requirements [2](#application-requirements)

3\. Bidding Credits [2](#bidding-credits)

E. Provisions Regarding Defaulters and Former Defaulters (FCC Form 175
Exhibit D)
[2](#e.-provisions-regarding-defaulters-and-former-defaulters-fcc-form-175-exhibit-d)

F. Installment Payments [2](#f.-installment-payments)

G. Other Information (FCC Form 175 Exhibits E and F)
[2](#g.-other-information-fcc-form-175-exhibits-e-and-f)

I. Maintaining Current Information in Short-Form Applications (FCC Form
175)
[2](#i.-maintaining-current-information-in-short-form-applications-fcc-form-175)

III\. PRE-AUCTION PROCEDURES [2](#iii.-pre-auction-procedures)

A. Auction Seminar [2](#auction-seminar)

B. Short-Form Application (FCC Form 175) --- Due August 6, 2004
[2](#short-form-application-fcc-form-175-due-august-6-2004)

1\. Electronic Filing [2](#electronic-filing)

2\. Completion of the FCC Form 175 [2](#completion-of-the-fcc-form-175)

3\. Electronic Review of FCC Form 175
[2](#electronic-review-of-fcc-form-175)

C. Application Processing and Minor Corrections
[2](#application-processing-and-minor-corrections)

D. Upfront Payments --- Due September 24, 2004
[2](#upfront-payments-due-september-24-2004)

1\. Making Auction Payments by Wire Transfer
[2](#making-auction-payments-by-wire-transfer)

2\. FCC Form 159 [2](#fcc-form-159)

3\. Amount of Upfront Payment [2](#amount-of-upfront-payment)

4\. Applicant\'s Wire Transfer Information for Purposes of Refunds of
Upfront

Payments
[2](#applicants-wire-transfer-information-for-purposes-of-refunds-of-upfront-payments)

E. Auction Registration [2](#auction-registration)

F. Remote Electronic Bidding [2](#remote-electronic-bidding)

G. Mock Auction [2](#mock-auction)

IV\. AUCTION EVENT [2](#iv.-auction-event)

A. Auction Structure [2](#auction-structure)

1\. Simultaneous Multiple Round Auction
[2](#simultaneous-multiple-round-auction)

2\. Maximum Eligibility and Activity Rules
[2](#maximum-eligibility-and-activity-rules)

3\. Activity Rule Waivers and Reducing Eligibility
[2](#activity-rule-waivers-and-reducing-eligibility)

4\. Auction Stopping Rules [2](#auction-stopping-rules)

5\. Auction Delay, Suspension, or Cancellation
[2](#auction-delay-suspension-or-cancellation)

B. Bidding Procedures [2](#bidding-procedures)

1\. Round Structure [2](#round-structure)

2\. Reserve Price or Minimum Opening Bid
[2](#reserve-price-or-minimum-opening-bid)

3\. Minimum Acceptable Bids and Bid Increments
[2](#minimum-acceptable-bids-and-bid-increments)

4\. High Bids [2](#high-bids)

5\. Bidding [2](#bidding)

6\. Bid Removal and Bid Withdrawal [2](#bid-removal-and-bid-withdrawal)

7\. Round Results [2](#round-results)

8\. Auction Announcements [2](#auction-announcements)

9\. Maintaining the Accuracy of FCC Form 175 Information
[2](#maintaining-the-accuracy-of-fcc-form-175-information)

V. POST-AUCTION PROCEDURES [2](#v.-post-auction-procedures)

A. Down Payments and Withdrawn Bid Payments
[2](#down-payments-and-withdrawn-bid-payments)

B. Final Payments [2](#final-payments)

C. Long-Form Application [2](#long-form-application)

D. Default and Disqualification [2](#default-and-disqualification)

E. Refund of Remaining Upfront Payment Balance
[2](#e.-refund-of-remaining-upfront-payment-balance)

VI Attachment A: Construction Permits to be Auctioned A-1

VII\. Attachment B: FCC Auction Seminar Registration Form B-1

VIII\. Attachment C: Electronic Filing and Review of the FCC Form 175
C-1

IX\. Attachment D: Guidelines for Completion of FCC Form 175 and
Exhibits D-1

X. Attachment E: Auction-Specific Instructions for FCC Remittance Advice
(FCC Form 159-

February 2003 Edition) E-1

XI\. Attachment F: Summary Listing of Commission and Bureau Documents
Addressing

Application of the Anti-Collusion Rule F-1

# I. GENERAL INFORMATION {#i.-general-information .unnumbered}

## Introduction 

By this public notice, the Media Bureau ("MB") and Wireless
Telecommunications Bureau ("WTB") (collectively the "Bureaus") announce
the procedures and minimum opening bids for the upcoming auction of
certain FM Broadcast construction permits ("Auction No. 37"). On April
15, 2004, in accordance with the Balanced Budget Act of 1997,[^1] the
Bureaus released a public notice seeking comment on previously announced
procedures for Auction No. 37.[^2] The Bureaus received eight comments
and no reply comments in response to the *2004 Auction No. 37 Revised
Comment Public Notice*.[^3]

### Background

As described in detail in the *2004 Auction No. 37 Revised Comment
Public Notice*, Auction No. 37 was originally scheduled for February 21,
2001, but was subsequently postponed.[^4] Before Auction No. 37 was
postponed in September 2001, on September 25, 2000, the Bureaus released
the *Auction No. 37 Comment Public Notice*,[^5] seeking comment on the
establishment of reserve prices and/or minimum opening bids and
procedures for Auction No. 37, in accordance with the Balanced Budget
Act of 1997.[^6] On September 29, 2000, the Bureaus released a second
Public Notice, adding eight additional vacant FM allotments to the
auction inventory and seeking comment on auction procedures and minimum
opening bids with respect to the additional allotments.[^7] On January
19, 2001, the Bureaus released the *2001 Procedures Public Notice*,[^8]
in which the Bureaus, *inter alia*, reduced the minimum opening bids for
the Auction No. 37 construction permits, and set forth the procedures to
be followed in Auction No. 37.

In the *NCE Second Report and Order*, the Commission established revised
procedures through which NCE applicants could seek to reserve
non-reserved FM channels.[^9] Pursuant to a Public Notice released
September 30, 2003, MB opened a window to permit NCE reservation
showings for certain FM allotments.[^10] By the reservation filing
deadline, NCE applicants had filed petitions to reserve 60 of the
channels previously included in the Auction No. 37 inventory. Those
channels have been removed from the auction inventory while reservation
showings are being evaluated. Auction No. 37 will proceed with the
remaining vacant FM allotments. In the *2004 Auction No. 37 Revised
Comment Public Notice*, the Bureaus again sought comment on the minimum
opening bids and procedures for Auction No. 37.

### Construction Permits to Be Auctioned

Auction No. 37 will consist of 290 construction permits in the FM
Broadcast service for stations throughout the United States, Guam, and
American Samoa. These construction permits are for vacant FM allotments,
reflecting FM channels assigned to the Table of FM Allotments, 47 C.F.R.
§ 73.202(b), pursuant to the Commission's established rulemaking
procedures, designated for use in the indicated community. Pursuant to
the policies established in the *Broadcast First Report and Order*,
applicants may apply for any vacant FM allotment, as specified in
Attachment A;[^11] applicants specifying the same FM allotment will be
considered mutually exclusive and, thus, the construction permit for the
FM allotment will be awarded by competitive bidding procedures.[^12] The
reference coordinates for each vacant FM allotment are also listed in
Attachment A.[^13] When two or more short-form applications (FCC Form
175) for an FM allotment are accepted for filing, mutual exclusivity
("MX") exists for auction purposes.[^14] Once mutual exclusivity exists
for auction purposes, even if only one applicant within an MX Group
submits an upfront payment, that applicant is required to submit a bid
in order to obtain the construction permit.[^15]

## Rules and Disclaimers

### Relevant Authority

Prospective bidders must familiarize themselves thoroughly with the
Commission\'s rules relating to the FM broadcast service contained in
Title 47, Part 73 of the Code of Federal Regulations. Prospective
bidders must also be familiar with the rules relating to broadcast
auctions and competitive bidding proceedings contained in Title 47, Part
1, Subpart Q, and Part 73, Subpart I of the Code of Federal Regulations.
Prospective bidders must also be thoroughly familiar with the
procedures, terms and conditions contained in this Public Notice,[^16]
the *2004 Auction No. 37 Revised Comment Public Notice* and the
*Broadcast First Report and Order,*[^17] the *Broadcast Reconsideration
Order,*[^18] and the *New Entrant Bidding Credit Reconsideration
Order*.[^19] In particular, broadcasters should also familiarize
themselves with the Commission's recent amendments and clarifications to
its general competitive bidding rules.[^20]

The terms contained in the Commission\'s rules, relevant orders and
public notices are not negotiable. The Commission may amend or
supplement the information contained in our public notices at any time,
and will issue public notices to convey any new or supplemental
information to applicants. It is the responsibility of all applicants to
remain current with all Commission rules and with all public notices
pertaining to this auction. Copies of most Commission documents,
including public notices, can be retrieved from the FCC Auctions
Internet site at [http://wireless.fcc.gov/auctions]{.underline}.
Additionally, documents are available for public inspection and copying
during regular business hours at the FCC Reference Information Center,
445 12^th^ Street, SW, Room CY-A257, Washington, DC, 20554. Documents
may also be purchased from the Commission\'s duplicating contractor,
Best Copy and Printing, Inc., 445 12^th^ Street, SW, Room CY-B402,
Washington, DC 20554, 202-488-5300 (telephone), 202-488-5563
(facsimile), or <fcc@bcpiweb.com> (e-mail). When ordering documents from
Best Copy and Printing, Inc., please provide the appropriate FCC
document number (for example, FCC 98-194 for the *Broadcast First Report
and Order* and FCC 99-74 for the *Broadcast Reconsideration Order*).

### Prohibition of Collusion 

To ensure the competitiveness of the auction process, the Commission's
Part 1 rules prohibit applicants for any of the same geographic license
areas from communicating with each other during the auction about bids,
bidding strategies, or settlements unless such applicants have
identified each other on their FCC Form 175 applications as parties with
whom they have entered into agreements under Section
1.2105(a)(2)(viii).[^21] Thus, applicants for any of the same geographic
license areas must affirmatively avoid all discussions with each other
that affect, or in their reasonable assessment, have the potential to
affect, bids or bidding strategy. This prohibition begins at the
short-form application filing deadline and ends at the down payment
deadline after the auction. The "geographic license area" is the market
designation of the particular service.[^22] For the FM service, the
market designation is the particular vacant FM allotment (*e.g.*,
Bethel, Alaska Channel 252C3, Market FM001). In Auction No. 37, for
example, the rule would apply to applicants bidding for any of the same
FM allotments. Therefore, applicants that apply to bid for an FM
construction permit for the same allotment would be precluded from
engaging in prohibited communications after the FCC Form 175 short-form
application deadline. In addition, even if auction applicants are each
eligible to bid on only one common FM allotment, they may not discuss
with each other their bids or bidding strategies relating to any FM
allotment that either is eligible to bid on. For purposes of this
prohibition, Section 1.2105(c)(7)(i) defines applicant as including all
controlling interests in the entity submitting a short-form application
to participate in the auction, 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.[^23]

Bidders competing for construction permits for any of the same
designated markets are encouraged not to use the same individual as an
authorized bidder. A violation of the anti‑collusion rule could occur if
an individual acts as the authorized bidder for two or more competing
applicants, and conveys information concerning the substance of bids or
bidding strategies between the bidders he or she is authorized to
represent in the auction. Also, if the authorized bidders are different
individuals employed by the same organization (*e.g.*, law firm or
consulting firm), a violation could similarly occur. In such a case, at
a minimum, applicants should certify on their applications that
precautionary steps have been taken to prevent communication between
authorized bidders and that applicants and their bidding agents will
comply with the anti‑collusion rule.[^24]

However, the Bureaus caution that merely filing a certifying statement
as part of an application will not outweigh specific evidence that
collusive behavior has occurred, nor will it preclude the initiation of
an investigation when warranted.[^25] The Commission's anti-collusion
rules allow applicants to form certain agreements during the auction,
provided the applicants have not applied for construction permits in the
same designated market. However, applicants may enter into bidding
agreements *before* filing their FCC Form 175, as long as they disclose
the existence of the agreement(s) in their FCC Form 175.[^26] If parties
agree in principle on all material terms prior to the short-form filing
deadline, those parties must be identified on the short-form application
under Section 1.2105(c), even if the agreement has not been reduced to
writing. If the parties have not agreed in principle by the filing
deadline, an applicant would not include the names of those parties on
its application, and may not continue negotiations with other applicants
for the same designated market.[^27] By signing their FCC Form 175
short-form applications, applicants are certifying their compliance with
Sections 1.2105(c) and 73.5002.

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
substantial change that may be of decisional significance to that
application.[^28] Thus, Section 1.65 requires auction applicants that
engage in communications of bids or bidding strategies that result in a
bidding 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. 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.[^29]

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, and
other arrangements entered into relating to the competitive bidding
process.[^30] Any applicant found to have violated the anti-collusion
rule may be subject to sanctions, including forfeiture of its upfront
payment, down payment or full bid amount, and may be prohibited from
participating in future auctions.[^31] In addition, applicants are
reminded that they are subject to the antitrust laws, which are designed
to prevent anticompetitive 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.[^32]

[]{.mark}

A summary listing of documents from the Commission and the Bureaus
addressing the application of the anti-collusion rules may be found in
Attachment F.

### Due Diligence 

Potential bidders are reminded that they are solely responsible for
investigating and evaluating all technical and market place factors that
may have a bearing on the value of the broadcast facilities in this
auction. **The FCC makes no representations or warranties about the use
of this spectrum for particular services.** **Applicants should be aware
that an FCC auction represents an opportunity to become an FCC permittee
in the broadcast service, subject to certain conditions and
regulations.** **An FCC auction does not constitute an endorsement by
the FCC of any particular service, technology, or product, nor does an
FCC construction permit or license constitute a guarantee of business
success.** Applicants should perform their individual due diligence
before proceeding as they would with any new business venture.[^33]

In particular, potential bidders are strongly encouraged to review all
underlying Commission orders, such as the specific *Report and Order*
amending the FM Table of Allotments and allotting the FM channel(s) on
which they plan to bid.[^34] *Reports and Orders* adopted in FM
allotment rulemaking proceedings often include anomalies such as site
restrictions or expense reimbursement requirements.[^35] Bidders are
also responsible for reviewing all pending rulemaking petitions and open
proceedings that might affect the FM allotment(s) on which they plan to
bid.[^36] Additionally, potential bidders should perform technical
analyses sufficient to assure them that, should they prevail in
competitive bidding for a given FM allotment, they will be able to build
and operate facilities that will fully comply with the Commission's
technical and legal requirements.

Potential bidders are also strongly encouraged to conduct their own
research prior to Auction No. 37 in order to determine the existence of
any pending administrative or judicial proceedings that might affect
their decision to participate in the auction. Participants in Auction
No. 37 are strongly encouraged to continue such research throughout the
auction.

Potential bidders should also be aware that certain pending and future
applications (including those for modification), petitions for
rulemaking, requests for special temporary authority, waiver requests,
petitions to deny, petitions for reconsideration, informal oppositions,
and applications for review before the Commission may relate to
particular applicants or incumbent permittees or the construction
permits available in Auction No. 37. In addition, pending and future
judicial proceedings may relate to particular applicants or incumbent
permittees, or the construction permits available in Auction No. 37.
Prospective bidders are responsible for assessing the likelihood of the
various possible outcomes, and considering their potential impact on
construction permits available in this auction.

Prospective bidders should perform due diligence to identify and
consider all proceedings that may affect the construction permits being
auctioned. We note that resolution of such matters could have an impact
on the availability of spectrum for Auction No. 37. In addition,
although the Commission may continue to act on various pending
applications, informal objections, petitions, and other requests for
Commission relief, some of these matters may not be resolved by the time
of the auction.

**Bidders are solely responsible for identifying associated risks and
for investigating and evaluating the degree to which such matters may
affect their ability to bid on, otherwise acquire, or make use of the
construction permits available in Auction No. 37. Potential bidders are
strongly encouraged to physically inspect any sites located in, or near,
the FM allotment for which they plan to bid.**

Potential bidders may research the licensing database for the Media
Bureau on the Internet in order to determine which channels are already
licensed to incumbent licensees. Licensing records for the Media Bureau
are contained in the Media Bureau's Consolidated Data Base System (CDBS)
and may be researched on the Internet at
[http://www.fcc.gov/mb/]{.underline}. Potential bidders may query the
database online and download a copy of their search results if desired.
Detailed instructions on using Search for Station Information, Search
for Ownership Report Information and Search for Application Information
and downloading query results are available online by selecting the CDBS
Public Access (main) button at the bottom of the Electronic Filing and
Public Access list section. The database searches return either station
or application data. The application search provides an application link
that displays the complete electronically filed application in
application format. An AL/TC search under the application search link
permits searching for Assignment of License/Transfer of Control groups
using the AL/TC group lead application. For further details, click on
the [Help]{.underline} file. Potential bidders should direct questions
regarding the search capabilities of CDBS to the Media Bureau help line
at (202) 418-2662, or via e-mail at
[mbinfo@fcc.gov.](mailto:ulscomm@fcc.gov)

The Commission makes no representations or guarantees regarding the
accuracy or completeness of information in its databases or any third
party databases, including, for example, court docketing systems. To the
extent the Commission's databases may not include all information deemed
necessary or desirable by a bidder, bidders may obtain or verify such
information from independent sources or assume the risk of any
incompleteness or inaccuracy in said databases. Furthermore, the
Commission makes no representations or guarantees regarding the accuracy
or completeness of information that has been provided by incumbent
licensees and incorporated into the database.

### Bidder Alerts 

All applicants must certify on their FCC Form 175 applications under
penalty of perjury that they are legally, technically, financially and
otherwise qualified to hold a construction permit, and not in default on
any payment for Commission construction permits or licenses (including
down payments) or delinquent on any non-tax debt owed to any Federal
agency.[^37] Prospective bidders are reminded that submission of a false
certification to the Commission is a serious matter that may result in
severe penalties, including monetary forfeitures, construction permit or
license revocations, exclusion from participation in future auctions,
and/or criminal prosecution.

As is the case with many business investment opportunities, some
unscrupulous entrepreneurs may attempt to use Auction No. 37 to deceive
and defraud unsuspecting investors. Common warning signals of fraud
include the following:

-   The first contact is a "cold call" from a telemarketer, or is made
    in response to an inquiry prompted by a radio or television
    infomercial.

-   The offering materials used to invest in the venture appear to be
    targeted at IRA funds, for example by including all documents and
    papers needed for the transfer of funds maintained in IRA accounts.

-   The amount of investment is less than \$25,000.

-   The sales representative makes verbal representations that: (a) the
    Internal Revenue Service ("IRS"), Federal Trade Commission ("FTC"),
    Securities and Exchange Commission ("SEC"), FCC, or other government
    agency has approved the investment; (b) the investment is not
    subject to state or federal securities laws; or (c) the investment
    will yield unrealistically high short-term profits. In addition, the
    offering materials often include copies of actual FCC releases, or
    quotes from FCC personnel, giving the appearance of FCC knowledge or
    approval of the solicitation.

Information about deceptive telemarketing investment schemes is
available from the FTC at (202) 326-2222 and from the SEC at (202)
942-7040. Complaints about specific deceptive telemarketing investment
schemes should be directed to the FTC, the SEC, or the National Fraud
Information Center at (800) 876-7060. Consumers who have concerns about
specific proposals regarding Auction No. 37 may also call the FCC
Consumer Center at (888) CALL-FCC ((888) 225-5322).

### National Environmental Policy Act (NEPA) Requirements

Permittees must comply with the Commission\'s rules regarding the
National Environmental Policy Act (NEPA).[^38] The construction of a
broadcast facility is a federal action and the permittee must comply
with the Commission\'s NEPA rules for each such facility.[^39] The
Commission\'s NEPA rules require among other things, that the permittee
consult with expert agencies having NEPA responsibilities, including the
U.S. Fish and Wildlife Service, the State Historic Preservation Office,
the Army Corp of Engineers and the Federal Emergency Management Agency
(through the local authority with jurisdiction over floodplains). The
permittee must prepare environmental assessments for broadcast
facilities that may have a significant impact in or on wilderness areas,
wildlife preserves, threatened or endangered species or designated
critical habitats, historical or archaeological sites, Indian religious
sites, floodplains, and surface features. The permittee must also
prepare environmental assessments for broadcast facilities that include
high intensity white lights in residential neighborhoods or excessive
radio frequency emission.

## Auction Specifics

### Auction Date

The auction will begin on Wednesday, November 3, 2004. The initial
schedule for bidding will be announced by public notice at least one
week before the start of the auction. Unless otherwise announced,
bidding on all construction permits will be conducted on each business
day until bidding has stopped on all construction permits.

### Auction Title

Auction No. 37 --- FM Broadcast

### Bidding Methodology 

The bidding methodology for Auction No. 37 will be simultaneous multiple
round bidding. The Commission will conduct this auction over the
Internet, and telephonic bidding will be available as well. As a
contingency plan, bidders may also dial in to the FCC Wide Area Network.
Qualified bidders are permitted to bid telephonically or electronically.

### Pre-Auction Dates and Deadlines

Auction Seminar July 22, 2004

Short-Form Application (FCC FORM 175) Filing Window Opens July 22, 2004;
noon, ET

Short-Form Application (FCC FORM 175) Filing Window Deadline August 6,
2004; 6:00 p.m. ET

Upfront Payments (via wire transfer) September 24, 2004; 6:00 p.m. ET

Mock Auction October 29, 2004

Auction Begins November 3, 2004

### Requirements for Participation 

Those wishing to participate in the auction must:

-   Submit a short form application (FCC Form 175) electronically by
    6:00 p.m. ET, August 6, 2004. No other application may be
    substituted for the FCC Form 175.

-   Submit a sufficient upfront payment and a FCC Remittance Advice Form
    (FCC Form 159) by 6:00 p.m. ET, September 24, 2004.

-   Comply with all provisions outlined in this public notice and
    applicable Commission rules.

Two commenters suggest that we establish restrictions on which entities
are eligible to participate in Auction No. 37. Hodson suggests that the
top 25 national radio broadcast business conglomerates should be
prohibited from participating in Auction No. 37.[^40] Hodson further
suggests that any regional or local broadcast entities with attributable
interests in any broadcast license within 250 kilometers of a specified
vacant FM allotment, should be ineligible to bid on that particular
allotment.[^41] Van Zandt proposes that we limit the number of
construction permits on which existing broadcasters and large
corporations may bid.[^42] We will not impose any eligibility
restrictions in Auction No. 37. Barring certain entities from
participating in an auction based on the number of facilities they own
would constitute a *de facto* amendment of the Commission's broadcast
ownership rules.[^43] Rules concerning eligibility to hold a license are
established in service rules adopted by the Commission. The Bureaus'
process for seeking comment on auction procedures is not the appropriate
forum to address such rule changes. Such an issue should have been
raised in the context of a rulemaking proceeding establishing license
eligibility rules for the FM Broadcast service.[^44]

### General Contact Information

+-----------------------------------+-----------------------------------+
| **GENERAL AUCTION INFORMATION**   | FCC Auctions Hotline              |
|                                   |                                   |
| General Auction Questions         | \(888\) 225-5322, Press Option #2 |
|                                   |                                   |
| Seminar Registration              | or direct (717) 338-2888          |
|                                   |                                   |
|                                   | Hours of service: 8 a.m. -- 5:30  |
|                                   | p.m. ET                           |
|                                   |                                   |
|                                   | Monday through Friday             |
+-----------------------------------+-----------------------------------+
|                                   |                                   |
+-----------------------------------+-----------------------------------+
| **AUCTION LEGAL INFORMATION**     | Auctions and Spectrum Access      |
|                                   | Division                          |
| Auction Rules, Policies,          |                                   |
| Regulations                       | \(202\) 418-0660                  |
+-----------------------------------+-----------------------------------+
|                                   |                                   |
+-----------------------------------+-----------------------------------+
| **LICENSING INFORMATION**         | Audio Division                    |
|                                   |                                   |
| Rules, Policies, Regulations      | \(202\) 418-2700                  |
|                                   |                                   |
| Licensing Issues, Engineering     |                                   |
| Issues,                           |                                   |
|                                   |                                   |
| Due Diligence, Incumbency Issues  |                                   |
+-----------------------------------+-----------------------------------+
|                                   |                                   |
+-----------------------------------+-----------------------------------+
| **TECHNICAL SUPPORT**             | FCC Auctions Technical Support    |
|                                   | Hotline                           |
| Electronic Filing                 |                                   |
|                                   | \(202\) 414-1250 (Voice),         |
| FCC Automated Auction System      |                                   |
|                                   | \(202\) 414-1255 (TTY)            |
|                                   |                                   |
|                                   | Hours of service: 8 a.m. to 6:00  |
|                                   | p.m. ET,                          |
|                                   |                                   |
|                                   | Monday through Friday             |
+-----------------------------------+-----------------------------------+
|                                   |                                   |
+-----------------------------------+-----------------------------------+
| **PAYMENT INFORMATION**           | FCC Auctions Accounting Group     |
|                                   |                                   |
| Wire Transfers                    | \(202\) 418-0578                  |
|                                   |                                   |
| Refunds                           | \(202\) 418-2843 (Fax)            |
+-----------------------------------+-----------------------------------+
|                                   |                                   |
+-----------------------------------+-----------------------------------+
| **TELEPHONIC BIDDING**            | Will be furnished only to         |
|                                   | qualified bidders                 |
+-----------------------------------+-----------------------------------+
|                                   |                                   |
+-----------------------------------+-----------------------------------+
| **FCC COPY CONTRACTOR**           | Best Copy and Printing, Inc.      |
|                                   |                                   |
| Additional Copies of              | 445 12^th^ Street, SW, Room       |
|                                   | CY-B402                           |
| Commission Documents              |                                   |
|                                   | Washington, DC 20554              |
|                                   |                                   |
|                                   | \(202\) 488-5300                  |
|                                   |                                   |
|                                   | \(202\) 488-5563 (Fax)            |
|                                   |                                   |
|                                   | fcc@bcpiweb.com (E-mail)          |
+-----------------------------------+-----------------------------------+
| **PRESS INFORMATION**             | Lauren Patrich at (202) 418-7944  |
+-----------------------------------+-----------------------------------+
|                                   |                                   |
+-----------------------------------+-----------------------------------+
| **FCC FORMS**                     | \(800\) 418-3676 (outside         |
|                                   | Washington, DC)                   |
|                                   |                                   |
|                                   | \(202\) 418-3676 (in the          |
|                                   | Washington Area)                  |
|                                   |                                   |
|                                   | http://www.fcc.gov/formpage.html  |
+-----------------------------------+-----------------------------------+
|                                   |                                   |
+-----------------------------------+-----------------------------------+
| **FCC INTERNET SITES**            | [**http://ww                      |
|                                   | w.fcc.gov**](http://www.fcc.gov/) |
|                                   |                                   |
|                                   | [**htt                            |
|                                   | p://wireless.fcc.gov/auctions**]( |
|                                   | http://wireless.fcc.gov/auctions) |
|                                   |                                   |
|                                   | [**http://www.fcc.gov/mb/audi     |
|                                   | o**](http://www.fcc.gov/mb/audio) |
|                                   |                                   |
|                                   | [**ftp://f                        |
|                                   | tp.fcc.gov**](ftp://ftp.fcc.gov/) |
+-----------------------------------+-----------------------------------+
|                                   |                                   |
+-----------------------------------+-----------------------------------+

# II. SHORT-FORM (FCC FORM 175) APPLICATION REQUIREMENTS {#ii.-short-form-fcc-form-175-application-requirements .unnumbered}

Guidelines for completion of the short-form application (FCC Form 175)
are set forth in Attachment D to this public notice. The short-form
application seeks the applicant's name and address, legal
classification, status, new entrant bidding credit eligibility,
identification of the construction permit(s) sought, the authorized
bidders and contact persons. All applicants must certify on their FCC
Form 175 applications under penalty of perjury that they are legally,
technically, financially and otherwise qualified to hold a license and,
as discussed below in Section II.E (Provisions Regarding Defaulters and
Former Defaulters), that they are not in default on any payment for
Commission licenses (including down payments) or delinquent on any
non-tax debt owed to any Federal agency. To participate in Auction No.
37, no other application may be substituted for the FCC Form 175.[^45]

## Permit Selection

In the FCC Form 175 for certain previous non-broadcast auctions,
applicants could use a "Save All Licenses" function to indicate that
they wanted to pursue all markets being auctioned. One commenter
suggests we not include a "Save All Licenses" function in the Form 175
for Auction No. 37. The commenter claims that inclusion of this function
will increase the likelihood that applicants will use the function
rather than selecting only those allotments that they wish to construct
and operate.[^46] We agree that a "Save All Licenses" function is
appropriate for wireless auctions, but it is inappropriate in the
broadcast context. Thus, on the FCC Form 175 for Auction No. 37,
applicants must indicate FM construction permits that they want to
pursue by selecting the FM allotments individually.

## Ownership Disclosure Requirements (FCC Form 175 Exhibit A)

The Commission indicated in the *Broadcast First Report and Order* that,
for purposes of determining eligibility to participate in a broadcast
auction, the uniform Part 1 ownership disclosure standards would apply.
Therefore, in completing the FCC Form 175, all applicants will be
required to file an "Exhibit A" and provide information required by
Sections 1.2105 and 1.2112 of the Commission's rules, thus providing a
full and complete statement of the ownership of the bidding entity. The
ownership disclosure standards for the short-form are set forth in
Section 1.2112 of the Commission's rules.[^47]

## Consortia and Joint Bidding Arrangements (FCC Form 175 Exhibit B)

Applicants will be required to identify on their short-form applications
any parties with whom they have entered into any consortium
arrangements, joint ventures, partnerships or other agreements or
understandings that relate in any way to the construction permits being
auctioned, including any agreements relating to post-auction market
structure.[^48] Applicants will also be required to certify on their
short-form applications that they have not entered into any explicit or
implicit agreements, arrangements or understandings of any kind with any
parties, other than those identified, regarding the amount of their
bids, bidding strategies, or the particular construction permits on
which they will or will not bid.[^49] As discussed above, if an
applicant has had discussions, but has not reached a joint bidding
agreement by the short-form deadline, it would not include the names of
parties to the discussions on its applications and may not continue
discussions with applicants for the same market after the deadline.[^50]
Where applicants have entered into consortia or joint bidding
arrangements, applicants must submit an "Exhibit B" to the FCC Form 175.

A party holding a non-controlling, attributable interest in one
applicant will be permitted to acquire an ownership interest in, form a
consortium with, or enter into a joint bidding arrangement with other
applicants for construction permits in the same market provided that (i)
the attributable interest holder certifies that it has not 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 formed a consortium or entered into a
joint bidding arrangement; and (ii) the arrangements do not result in a
change in control of any of the applicants.[^51] While the
anti-collusion rules do not prohibit non-auction related business
negotiations among auction applicants, applicants are reminded that
certain discussions or exchanges could touch upon impermissible subject
matters because they may convey pricing information and bidding
strategies.[^52] Such subject areas include, but are not limited to,
issues such as management, sales, local marketing agreements,
rebroadcast agreements, and other transactional agreements.

## D. New Entrant Bidding Credit (FCC Form 175 Exhibit C) {#d.-new-entrant-bidding-credit-fcc-form-175-exhibit-c .unnumbered}

To fulfill its obligations under Section 309(j) and further its
long-standing commitment to the diversification of broadcast facility
ownership, the Commission adopted a tiered New Entrant Bidding Credit
for broadcast auction applicants with no, or very few, other media
interests.

### 1. Eligibility {#eligibility .unnumbered}

The interests of the bidder, and of any individuals or entities with an
attributable interest in the bidder, in other media of mass
communications shall be considered when determining a bidder\'s
eligibility for the New Entrant Bidding Credit.[^53] The bidder\'s
attributable interests shall be determined as of the short-form
application (FCC Form 175) filing deadline -- August 6, 2004. Bidders
intending to divest a media interest or make any other ownership
changes, such as resignation of positional interests, in order to avoid
attribution for purposes of qualifying for the New Entrant Bidding
Credit must have consummated such divestment transactions or have
completed such ownership changes by no later than the short-form filing
deadline -- August 6, 2004.[^54]

Under traditional broadcast attribution rules, those entities or
individuals with an attributable interest in a bidder include:

all officers and directors of a corporate bidder;

any owner of 5 percent or more of the voting stock of a corporate
bidder;

all partners and limited partners of a partnership bidder, unless the
limited partners are sufficiently insulated; and

all members of a limited liability company, unless sufficiently
insulated.[^55]

In cases where a bidder's spouse or close family member holds other
media interests, such interests are not automatically attributable to
the bidder. The Commission decides attribution issues in this context
based on certain factors traditionally considered relevant.[^56] Bidders
should note that the mass media attribution rules were recently
revised.[^57]

Bidders are also reminded that, by the *New Entrant Bidding Credit
Reconsideration Order,* the Commission further refined the eligibility
standards for the New Entrant Bidding Credit, judging it appropriate to
attribute the media interests held by very substantial investors in, or
creditors of, a bidder claiming new entrant status. Specifically, the
attributable mass media interests held by an individual or entity with
an equity and/or debt interest in a bidder shall be attributed to that
bidder for purposes of determining its eligibility for the New Entrant
Bidding Credit, if the equity and debt interests, in the aggregate,
exceed 33 percent of the total asset value of the bidder, even if such
an interest is non-voting.[^58]

Generally, media interests will be attributable for purposes of the New
Entrant Bidding Credit to the same extent that such other media
interests are considered attributable for purposes of the broadcast
multiple ownership rules.[^59] However, attributable interests held by a
winning bidder in existing low power television, television translator
or FM translator facilities will not be counted among the bidders\'
other mass media interests in determining its eligibility for a New
Entrant Bidding Credit.[^60] A medium of mass communications is defined
in 47 C.F.R. § 73.5008(b). Full service noncommercial educational
stations, on both reserved and non-reserved channels, are included among
"media of mass communications" as defined in Section 73.5008(b).[^61]

### 2. Application Requirements {#application-requirements .unnumbered}

In addition to the ownership information required on Exhibit A,
applicants are required to file supporting documentation on Exhibit C to
their FCC Form 175 applications to establish that they satisfy the
eligibility requirements to qualify for a New Entrant Bidding
Credit.[^62] In those cases where a New Entrant Bidding Credit is being
sought, a certification under penalty of perjury must be set forth in
Exhibit C. An applicant claiming that it qualifies for a 35 percent new
entrant bidding credit must provide a certification, under penalty of
perjury, that neither it nor any of its attributable interest holders
have any attributable interests in any other media of mass
communications. An applicant claiming that it qualifies for a 25 percent
new entrant bidding credit must provide a certification, under penalty
of perjury, that neither it nor any of its attributable interest holders
have any attributable interests in more than three media of mass
communications, and must identify and describe such media of mass
communications.

### 3. Bidding Credits {#bidding-credits .unnumbered}

Applicants that qualify for the New Entrant Bidding Credit, as set forth
in 47 C.F.R. § 73.5007, are eligible for a bidding credit that
represents the amount by which a bidder\'s winning bid is discounted.
The size of a New Entrant Bidding Credit depends on the number of
ownership interests in other media of mass communications that are
attributable to the bidder-entity and its attributable interest-holders:

A 35 percent bidding credit will be given to a winning bidder if it,
and/or any individual or entity with an attributable interest in the
winning bidder, has no attributable interest in any other media of mass
communications, as defined in 47 C.F.R. § 73.5008;

A 25 percent bidding credit will be given to a winning bidder if it,
and/or any individual or entity with an attributable interest in the
winning bidder, has an attributable interest in no more than three mass
media facilities, as defined in 47 C.F.R. § 73.5008;

No bidding credit will be given if any of the commonly owned mass media
facilities serve the same area as the proposed broadcast station, as
defined in 47 C.F.R. § 73.5007(b), or if the winning bidder, and/or any
individual or entity with an attributable interest in the winning
bidder, has attributable interests in more than three mass media
facilities.

Bidding credits are not cumulative; qualifying applicants receive either
the 25 percent or the 35 percent bidding credit, but not both.
Attributable interests are defined in 47 C.F.R. § 73.3555 and Note 2 of
that section. Bidders should note that unjust enrichment provisions
apply to a winning bidder that utilizes a bidding credit and
subsequently seeks to assign or transfer control of its license or
construction permit to an entity not qualifying for the same level of
bidding credit.[^63]

Several commenters request that we revise the new entrant bidding
credits available for Auction No. 37. MMTC suggests we adopt certain
measures to prevent what it terms "bidding credit fraud," whereby
certain bidders initially claim eligibility for new entrant bidding
credits and thereafter change their status to the alleged disadvantage
of other bidders.[^64] Hodson suggests that we revise the eligibility
criteria for new entrant bidding credits.[^65] A third commenter, Van
Zandt, suggests a graduated scale of bidding credits ranging from a 10
to 50 percent discount for bidders with no commercial stations and
proposes that bidders with a large number of commercial stations pay up
to five times the amount of their winning bid.[^66]

Several commenters provide suggestions relating to the broad context of
bidding credits and bidding preferences in Auction No. 37. For example,
MMTC requests that the Commission provide bidding credits for
minority-owned businesses in Auction No. 37.[^67] AHDU requests that we
first auction the construction permits offered in Auction No. 37 to
minority businesses before the announced start date for Auction No.
37.[^68] Summit Media suggests a bidding credit for an applicant that
has its main office within 50 miles of the allotment on which it is
bidding.[^69]

First, we disagree with the assumption underlying MMTC's comments that
applicants that lose or change their new entrant bidding credit status
have necessarily engaged in fraudulent misrepresentation. To the extent
that an applicant makes a misrepresentation or lacks candor in the
course of its claim for a bidding credit, the Commission has sufficient
mechanisms to address such conduct, including the petition to deny
process. We therefore find no reason to adopt special measures to
address MMTC's concerns.

We also reject various suggestions by commenters to revise the criteria
for and the amount of the new entrant bidding credit and to adopt new
bidding credits based on other criteria. Implementation of these
proposals would require amendment of the Commission's competitive
bidding and broadcast service rules, which can only be accomplished
through a Commission rulemaking proceeding. The Bureau's process for
seeking comment on auction procedures is not the appropriate forum to
address such rule changes. Such rule changes should have been raised in
the context of the rulemaking proceeding establishing bidding credits
for the FM Broadcast service.

## E. Provisions Regarding Defaulters and Former Defaulters (FCC Form 175 Exhibit D) {#e.-provisions-regarding-defaulters-and-former-defaulters-fcc-form-175-exhibit-d .unnumbered}

Each applicant must certify on its FCC Form 175 application under
penalty of perjury that the applicant, its controlling interests, its
affiliates, and the affiliates of its controlling interests, as defined
by Section 1.2110, are not in default on any payment for Commission
licenses (including down payments) and not delinquent on any non-tax
debt owed to any Federal agency.[^70] In addition, each applicant must
include in its FCC Form 175 application a statement made under penalty
of perjury indicating whether or not the applicant, its affiliates, its
controlling interests, or the affiliates of its controlling interest, as
defined by Section 1.2110, have ever been in default on any Commission
licenses or have ever been delinquent on any non-tax debt owed to any
federal agency.[^71] **Applicants must include this statement as Exhibit
D of the FCC Form 175.** Prospective applicants are reminded that
submission of a false certification to the Commission is a serious
matter that may result in severe penalties, including monetary
forfeitures, license revocations, exclusion from participation in future
auctions, and/or criminal prosecution.

"Former defaulters" --- *i.e.*, applicants, including their attributable
interest holders, that in the past have defaulted on any Commission
licenses or been delinquent on any non-tax debt owed to any Federal
agency, but that have since remedied all such defaults and cured all of
their outstanding non-tax delinquencies --- are eligible to bid in
Auction No. 37, provided that they are otherwise qualified. However, as
discussed *infra* in Section III.D.3, former defaulters are required to
pay upfront payments that are fifty percent more than the normal upfront
payment amounts.[^72] One commenter, although agreeing with the current
defaulter and former defaulter certification requirement, suggests as an
alternative that if a former defaulter has remedied all defaults, cured
all outstanding delinquencies and remained debt-free for at least ten
years, it only be required to pay the standard upfront payment.[^73]
However, implementation of this suggestion would require amendment of
Section 1.2106(a) of the Commission's rules, which can only be
accomplished through a Commission rulemaking proceeding.

## F. Installment Payments {#f.-installment-payments .unnumbered}

One commenter suggests we allow small businesses to pay for their
licenses by making installment payments throughout the eight-year
initial license period.[^74] In the *Part 1 Third Report and Order*, the
Commission suspended the use of installment payments for the foreseeable
future.[^75] Accordingly, installment payment plans will not be
available in Auction No. 37.

## G. Other Information (FCC Form 175 Exhibits E and F) {#g.-other-information-fcc-form-175-exhibits-e-and-f .unnumbered}

Applicants owned by minorities or women, as defined in 47 C.F.R. §
1.2110(b)(2), may attach an exhibit (Exhibit E) regarding this status.
This applicant status information is collected for statistical purposes
only and assists the Commission in monitoring the participation of
"designated entities" in its auctions. Applicants wishing to submit
additional information may do so on Exhibit F (Miscellaneous
Information) to the FCC Form 175.

**H. Minor Modifications to Short-Form Applications (FCC Form 175)**

After the short-form filing deadline (6:00 p.m. ET on August 6, 2004),
applicants may make only minor changes to their FCC Form 175
applications. Applicants will not be permitted to make major
modifications to their applications (*e.g*., change their construction
permit selections, change the certifying official, change control of the
applicant). *See* 47 C.F.R. § 1.2105. Permissible minor changes include,
for example, deletion and addition of authorized bidders (to a maximum
of three) and revision of certain exhibits. Applicants should make these
modifications to their FCC Form 175 electronically and 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: [auction37@fcc.gov]{.underline}. The electronic mail
summarizing the changes must include a subject or caption referring to
Auction No. 37. The Bureaus request that parties format any attachments
to electronic mail as Adobe^®^ Acrobat^®^ (pdf) or Microsoft^®^ Word
documents.

**A separate copy of the letter should be faxed to the attention of
Kathryn Garland at (717) 338-2850.** Questions about other changes
should be directed to Kenneth Burnley of the Auctions and Spectrum
Access Division at (202) 418-0660.

## I. Maintaining Current Information in Short-Form Applications (FCC Form 175) {#i.-maintaining-current-information-in-short-form-applications-fcc-form-175 .unnumbered}

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
substantial change that may be of decisional significance to that
application.[^76] Amendments reporting substantial changes of possible
decisional significance in information contained in FCC Form 175
applications, as defined by 47 C.F.R. § 1.2105(b)(2), will not be
accepted and may in some instances result in the dismissal of the FCC
Form 175 application.

# III. PRE-AUCTION PROCEDURES {#iii.-pre-auction-procedures .unnumbered}

## Auction Seminar

On Thursday, July 22, 2004, the FCC will sponsor a seminar for Auction
No. 37 at the Federal Communications Commission, located at 445 12^th^
Street, S.W., Washington, D.C. The seminar will provide attendees with
information about pre-auction procedures, auction conduct, the FCC
Automated Auction System, auction rules, and the FM broadcast service
rules. The seminar will also provide an opportunity for prospective
bidders to ask questions of FCC staff.

To register, complete the registration form attached hereto as
Attachment B and submit it by Monday, July 19, 2004. Registrations are
accepted on a first-come, first-served basis. The seminar is free of
charge.

For potential bidders who are unable to attend, Audio/Video of this
seminar will be webcast live from the FCC\'s Audio/Video Events page at
<http://www.fcc.gov/realaudio/> . A recording of the webcast will also
be available for playback from the FCC\'s A/V Archives Page following
the meeting.

## Short-Form Application (FCC Form 175) --- Due August 6, 2004

In order to be eligible to bid in this auction, applicants must first
submit a FCC Form 175 application. This application must be submitted
electronically and received at the Commission no later than 6:00 p.m. ET
on August 6, 2004. Late applications will not be accepted.

There is no application fee required when filing an FCC Form 175.
However, to be eligible to bid, an applicant must submit an upfront
payment. *See* Section III.D, *infra.* Applicants must submit only one
FCC Form 175, regardless of the number of vacant FM allotments selected.

Pursuant to procedures established in the *Broadcast First Report and
Order*, the Media Bureau will impose a temporary freeze on the filing of
FM minor modification applications during the period that FCC Form 175
applications may be filed for FM Auction No. 37.[^77] A separate public
notice addressing this temporary freeze has been released.[^78]

### Electronic Filing

Applicants must file their FCC Form 175 applications
electronically.[^79] Applications may generally be filed at any time
beginning at noon ET on July 22, 2004, until 6:00 p.m. ET on August 6,
2004. Applicants are strongly encouraged to file early and are
responsible for allowing adequate time for filing their applications.
Applicants may update or amend their electronic applications multiple
times until the filing deadline on August 6, 2004.

Applicants must press the "SUBMIT Application" button on the
"Submission" page of the electronic form to successfully submit their
FCC Form 175s. Any form that is not submitted will not be reviewed by
the FCC. Information about accessing the FCC Form 175 is included in
Attachment C. Technical support is available at (202) 414-1250 (voice)
or (202) 414-1255 (text telephone (TTY)); hours of service are Monday
through Friday, from 8:00 a.m. to 6:00 p.m. ET. In order to provide
better service to the public, *all calls to the hotline are recorded.*

Applicants can also contact Technical Support via e-mail. To obtain the
address, click the **Support** tab on the Form 175 Homepage.

### Completion of the FCC Form 175

Applicants should carefully review 47 C.F.R. §§ 1.2105 and 73.5002, and
must complete all items on the FCC Form 175. Instructions for completing
the FCC Form 175 are in Attachment D of this public notice. Applicants
are encouraged to begin preparing the required attachments for FCC Form
175 prior to submitting the form. Attachments C and D to this public
notice provide information on the required attachments and appropriate
formats.

### Electronic Review of FCC Form 175

The FCC Form 175 electronic review system may be used to locate and
print applicants' FCC Form 175 information. There is no fee for
accessing this system. *See* Attachment C for details on accessing the
review system.

Applicants may also view other applicants' completed FCC Form 175s after
the filing deadline has passed, and the FCC has issued a public notice
explaining the status of the applications. **NOTE: Applicants should not
include their TIN/EIN or other sensitive information on any
exhibit/attachment to be uploaded. Contents of exhibits/attachments
become available for public access once the Status Public Notice is
released.**

## Application Processing and Minor Corrections

After the deadline for filing the FCC Form 175 applications has passed,
the FCC will process all timely submitted applications to determine
which are acceptable for filing, and subsequently will issue a public
notice identifying: (1) those applications accepted for filing; (2)
those applications rejected; and (3) those applications which have minor
defects that may be corrected, and the deadline for filing such
corrected applications.

Non-mutually exclusive applications will be listed in a subsequent
Public Notice to be released by the Bureaus. Such applications will not
proceed to auction, but will proceed in accordance with instructions set
forth in the Public Notice.[^80] All mutually exclusive applications
will be considered under the relevant procedures for conflict
resolution. Mutually exclusive commercial applications will proceed to
auction.[^81] In the *NCE Second Report and Order*, the Commission held
that applications for NCE FM stations on non-reserved spectrum, filed
during an FM filing window, will be returned as unacceptable for filing
if mutually exclusive with any application for a commercial
station.[^82] Accordingly, if an FCC Form 175 filed during the Auction
No. 37 filing window identifying the applicant as noncommercial
educational is mutually exclusive with any application filed during that
window by an applicant for a commercial station, the former will be
returned as unacceptable for filing.[^83]

As described more fully in the Commission's rules, after the August 6,
2004, short-form filing deadline, applicants may make only minor
corrections to their FCC Form 175 applications. Applicants will not be
permitted to make major modifications to their applications (*e.g.*,
change their construction permit selections, change the certifying
official, change control of the applicant, or change New Entrant Bidding
Credit eligibility).[^84]

## Upfront Payments --- Due September 24, 2004 

In order to be eligible to bid in the auction, applicants must submit an
upfront payment accompanied by an FCC Remittance Advice Form (FCC Form
159). After completing the FCC Form 175, filers will have access to an
electronic version of the FCC Form 159 that can be printed and faxed to
Mellon Bank in Pittsburgh, PA. All upfront payments must be received at
Mellon Bank by 6:00 p.m. ET on September 24, 2004.

Please note that:

-   All payments must be made in U.S. dollars.

-   All payments must be made by wire transfer.

-   Upfront payments for Auction No. 37 go to a lockbox number different
    from the lockboxes used in previous FCC auctions, and different from
    the lockbox number to be used for post-auction payments.

-   Failure to deliver the upfront payment by the September 24, 2004,
    deadline will result in dismissal of the application and
    disqualification from participation in the auction.

### Making Auction Payments by Wire Transfer

**Wire transfer payments must be received by 6:00 p.m. ET on September
24, 2004.** To avoid untimely payments, applicants should discuss
arrangements (including bank closing schedules) with their banker
several days before they plan to make the wire transfer, and allow
sufficient time for the transfer to be initiated and completed before
the deadline. Applicants will need the following information:

ABA Routing Number: 043000261

Receiving Bank: Mellon Pittsburgh

> BENEFICIARY: FCC/Account \# 910-1211

OBI Field: (Skip one space between each information item)

"AUCTIONPAY"

FCC REGISTRATION NUMBER (FRN): (same as FCC Form 159, block 11 and/or
21)

PAYMENT TYPE CODE: (same as FCC Form 159, block 24A: A37U)

FCC CODE 1: (same as FCC Form 159, block 28A: "37")

PAYER NAME: (same as FCC Form 159, block 2)

LOCKBOX NO.: \# 358435

**NOTE:** The BNF and Lockbox number are specific to the upfront
payments for this auction; do not use BNF or Lockbox numbers from
previous auctions.

Applicants must fax a completed FCC Form 159 (Revised Feb. 2003) to
Mellon Bank at (412) 209-6045 **at least one hour before** placing the
order for the wire transfer (but on the same business day). On the cover
sheet of the fax, write "Wire Transfer - Auction Payment for Auction
Event No. 37." 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.[^85] **Applicants are responsible for obtaining
confirmation from their financial institution that Mellon Bank has
timely received their upfront payment and deposited it in the proper
account.**

### FCC Form 159

A completed FCC Remittance Advice Form (FCC Form 159, Revised Feb. 2003)
must be faxed to Mellon Bank in order to accompany each upfront payment.
Proper completion of FCC Form 159 (Revised Feb. 2003) is critical to
ensuring correct credit of upfront payments. Detailed instructions for
completion of FCC Form 159 are included in Attachment E to this public
notice. An electronic version of the FCC Form 159 is available after
filing the FCC Form 175. The FCC Form 159 can be completed
electronically, but must be filed with Mellon Bank via facsimile.

### Amount of Upfront Payment

In the *Part 1 Order* the Commission delegated to the Bureaus the
authority and discretion to determine appropriate upfront payment(s) for
each auction.[^86] In addition, in the *Part 1 Fifth Report and Order*,
the Commission ordered that "former defaulters," *i.e.*, applicants that
have ever been in default on any Commission license or have ever been
delinquent on any non-tax debt owed to any Federal agency, be required
to pay upfront payments 50 percent greater than non-"former
defaulters."[^87] For purposes of this calculation, the "applicant"
includes the applicant itself, its affiliates, its controlling
interests, and affiliates of its controlling interests, as defined by
Section 1.2110 of the Commission's rules (as amended in the *Part 1
Fifth Report and Order*).[^88]

In the *Auction No. 37 Comment Public Notice* and the *2004 Auction No.
37 Revised Comment Public Notice*, we proposed that the amount of the
upfront payment would determine the number of bidding units on which a
bidder may place bids.[^89] In order to bid on a construction permit,
otherwise qualified bidders that applied for that construction permit on
FCC Form 175 must have an eligibility level that meets or exceeds the
number of bidding units assigned to that construction permit. At a
minimum, therefore, an applicant's total upfront payment must be enough
to establish eligibility to bid on at least one of the construction
permit applied for on FCC Form 175, or else the applicant will not be
eligible to participate in the auction. An applicant does not have to
make an upfront payment to cover all construction permits for which the
applicant has applied on its FCC Form 175, but rather to cover the
maximum number of bidding units that are associated with construction
permits on which the bidder wishes to place bids and hold high bids at
any given time.

In the *2001 Procedures Public Notice*, after reviewing comments
received in response to the *Auction No. 37 Comment Public Notice*, we
reduced the upfront payments originally proposed in that *Public
Notice*, setting forth the revised upfront payment amounts in Attachment
A to the *2001 Procedures Public Notice*. One commenter, in response to
the *2004 Auction No. 37 Revised Comment Public Notice*, suggests we
further reduce the upfront payments so that none is greater than
\$125,000, and that any allotment representing the first local
transmission service to a community with a population under 10,000 have
an upfront payment not to exceed \$5,000, regardless of station
class.[^90] Van Zandt suggests that the upfront payments be reduced to
10 percent of the minimum opening bid values listed in the *2004 Auction
No. 37 Revised Comment Public Notice*, and that a bidders upfront
payment should be no higher than the single highest minimum opening bid
for any allotment the bidder has selected in its FCC Form 175.[^91] We
do not adopt these suggestions. The Media Bureau has evaluated each
allotment and assigned an upfront payment amount, taking into account
various factors related to the efficiency of the auction and the
potential value of the spectrum, including the type of service and class
of facility offered, market size, population covered by the proposed FM
broadcast facility, industry cash flow data, and recent broadcast
transactions. Having once revised these amounts, in the *2001 Procedures
Public Notice*, the Media Bureau has determined that the revised upfront
payment amounts set forth in Attachment A to the *2004 Auction No. 37
Revised Comment Public Notice* are appropriate for these allotments. We
reject Van Zandt's suggestion because it does not provide an adequate
mechanism for establishing bidding eligibility and would be detrimental
to the transparency of the auction process. We also reject adoption of a
valuation system, such as that suggested by Hodson, that places caps on
minimum opening bids and upfront payments without regard to the
individual attributes of the FM allotments.

We adopt our proposal. The specific upfront payments and bidding units
for each construction permit are set forth in Attachment A of this
Public Notice.

In calculating its upfront payment amount, an applicant should determine
the [maximum]{.underline} number of bidding units on which it may wish
to be active (bidding units associated with construction permits on
which the bidder has the standing high bid from the previous round and
construction permits on which the bidder places a bid in the current
round) in any single round, and submit an upfront payment covering that
number of bidding units. In order to make this calculation, an applicant
should add together the upfront payments for all construction permits on
which it seeks to bid in any given round. **Bidders should check their
calculations carefully, as there is no provision for increasing a
bidder's maximum eligibility after the upfront payment deadline.**

  -------------------- ------------------- ---------------- ------------- --------------
  **Example: Upfront                                                      
  Payments and Bidding                                                    
  Flexibility**                                                           

  **Market Number**    **Channel/Class**   **Market Name**  **Bidding     **Upfront
                                                            Units**       Payment**

  FM008                246A                Calico Rock, AR  15,000        \$15,000

  FM009                257A                Cotton Plant, AR 15,000        \$15,000

  If a bidder wishes                                                      
  to bid on both                                                          
  construction permits                                                    
  in a round, it must                                                     
  have selected both                                                      
  on its FCC Form 175                                                     
  and purchased at                                                        
  least 30,000 bidding                                                    
  units (15,000 +                                                         
  15,000). If a bidder                                                    
  only wishes to bid                                                      
  on one in a given                                                       
  round, but not both,                                                    
  purchasing 15,000                                                       
  bidding units would                                                     
  meet the requirement                                                    
  for either                                                              
  construction permit.                                                    
  The bidder would be                                                     
  able to bid on                                                          
  either construction                                                     
  permit in a given                                                       
  round, [but not both                                                    
  at the same                                                             
  time]{.underline}.                                                      
  -------------------- ------------------- ---------------- ------------- --------------

> Former defaulters should calculate their upfront payment for all
> construction permits by multiplying the number of bidding units they
> wish to purchase by 1.5. In order to calculate the number of bidding
> units to assign to former defaulters, the Commission will divide the
> upfront payment received by 1.5 and round the result up to the nearest
> bidding unit.

NOTE: An applicant's actual bidding in any round will be limited by the
bidding units reflected in its upfront payment, notwithstanding the
number of construction permits the applicant has indicated in its FCC
Form 175.

### Applicant\'s Wire Transfer Information for Purposes of Refunds of Upfront Payments

The Commission will use wire transfers for all Auction No. 37 refunds.
To ensure that refunds of upfront payments are processed in an
expeditious manner, the Commission is requesting that all pertinent
information as listed below be supplied to the FCC. Applicants can
provide the information electronically during the initial short-form
filing window after the form has been submitted. Wire Transfer
Instructions can also be manually faxed to the FCC, Financial Operations
Center, Auctions Accounting Group, ATTN: Gail Glasser, at (202) 418-2843
by September 24, 2004. All refunds will be returned to the payer of
record as identified on the FCC Form 159 unless the payer submits
written authorization instructing otherwise. For additional information,
please call Gail Glasser at (202) 418-0578.

Name of Bank

ABA Number

> Contact and Phone Number

Account Number to Credit

Name of Account Holder

FCC Registration Number (FRN)

Taxpayer Identification Number (see below)

Correspondent Bank (if applicable)

ABA Number

Account Number

Applicants should also note that implementation of the Debt Collection
Improvement Act of 1996 requires the FCC to obtain a Taxpayer
Identification Number (TIN) before it can disburse refunds. Eligibility
for refunds is discussed in Section V.E., *infra*.

## Auction Registration

Approximately ten days before the auction, the FCC will issue a public
notice announcing all qualified bidders for the auction. Qualified
bidders are those applicants whose FCC Form 175 applications have been
accepted for filing and have timely submitted upfront payments
sufficient to make them eligible to bid on at least one of the
construction permits for which they applied.

All qualified bidders are automatically registered for the auction.
Registration materials will be distributed prior to the auction by two
separate overnight mailings, each containing the confidential bidder
identification number (BIN) and the other containing the SecurID cards,
both of which are required to place bids. **These mailings will be sent
only to the contact person at the contact address listed in the FCC Form
175.**

Applicants that do not receive both registration mailings will not be
able to submit bids. Therefore, any qualified applicant that has not
received both mailings by noon on Wednesday, October 27, 2004, should
contact the Auctions Hotline at (717) 338-2888. Receipt of both
registration mailings is critical to participating in the auction, and
each applicant is responsible for ensuring it has received all of the
registration material.

Qualified bidders should note that lost bidder identification numbers or
SecurID cards can be replaced only by appearing [in person]{.underline}
at the FCC Headquarters located at 445 12^th^ Street, S.W., Washington,
D.C. 20554. Only an authorized representative or certifying official, as
designated on an applicant\'s FCC Form 175, may appear in person with
two forms of identification (one of which must be a photo
identification) in order to receive replacements. Qualified bidders
requiring replacements must call technical support prior to arriving at
the FCC.

## Remote Electronic Bidding 

The Commission will conduct this auction over the Internet, and
telephonic bidding will be available as well. As a contingency plan,
bidders may also dial in to the FCC Wide Area Network. Qualified bidders
are permitted to bid telephonically or electronically. Each applicant
should indicate its bidding preference -- electronic or telephonic -- on
the FCC Form 175. In either case, **each authorized bidder** must have
its own SecurID card, which the FCC will provide at no charge. Each
applicant with one authorized bidder will be issued two SecurID cards,
while applicants with two or three authorized bidders will be issued
three cards. For security purposes, the SecurID cards and the FCC
Automated Auction System user manual are only mailed to the contact
person at the contact address listed on the FCC Form 175. Please note
that each SecurID card is tailored to a specific auction; therefore,
SecurID cards issued for other auctions or obtained from a source other
than the FCC will not work for Auction No. 37. The telephonic bidding
phone number will be supplied in the first overnight mailing, which also
includes the confidential bidder identification number.

Please note that the SecurID cards can be recycled, and we encourage
bidders to return the cards to the FCC. We will provide pre-addressed
envelopes that bidders may use to return the cards once the auction is
over.

## Mock Auction

All qualified bidders will be eligible to participate in a mock auction
on Friday, October 29, 2004. The mock auction will enable applicants to
become familiar with the FCC Automated Auction System prior to the
auction. Participation by all bidders is strongly recommended. Details
will be announced by public notice.

# IV. AUCTION EVENT {#iv.-auction-event .unnumbered}

The first round of bidding for Auction No. 37 will begin on Wednesday,
November 3, 2004. The initial bidding schedule will be announced in a
public notice listing the qualified bidders, which is released
approximately 10 days before the start of the auction.

## Auction Structure

### Simultaneous Multiple Round Auction

In the *2004* *Auction No. 37 Revised Comment Public Notice*, we
proposed to award all construction permits in Auction No. 37 in a
simultaneous multiple round auction.[^92] One commenter objects to the
simultaneous multiple round bidding methodology, claiming that it is
unfair for individuals and small groups who wish to bid on multiple
construction permits.[^93] Bidding rounds at the beginning of the
auction should provide sufficient time for bidders to enter bids on as
many allocations as they have selected. We will modify the round
schedule as the auction continues, making rounds shorter and more
frequent as bidding activity decreases, which is typical as auctions
progress. Any changes to the round schedule will be done based on our
analysis of the bidding activity and should not prevent bidders from
being able to place their bids before the conclusion of a round.[^94] We
adopt our proposal. We conclude that it is operationally feasible and
appropriate to auction the FM broadcast stations construction permits
through a simultaneous multiple round auction. Unless otherwise
announced, bids will be accepted on all construction permits in each
round of the auction.

### Maximum Eligibility and Activity Rules

In the *Auction No. 37 Comment Public Notice* and the *2004 Auction No.
37 Revised Comment Public Notice*, we proposed that the amount of the
upfront payment submitted by a bidder would determine the initial
(maximum) eligibility (as measured in bidding units) for each
bidder.[^95] No comments were received concerning the eligibility rule,
and we adopted the proposal in the *2001 Procedures Public Notice*.

For Auction No. 37, we adopt the maximum eligibility proposal. The
amount of the upfront payment submitted by a bidder determines the
initial eligibility (in bidding units) for each bidder. Note again that
each construction permit is assigned a specific number of bidding units
equal to the upfront payment listed in Attachment A on a bidding unit
per dollar basis. The total upfront payment defines the maximum number
of bidding units on which the applicant will be permitted to bid and
hold high bids in a round. As there is no provision for increasing a
bidder's eligibility after the upfront payment deadline, applicants are
cautioned to calculate their upfront payments carefully. **The total
upfront payment does not affect the total dollar amount a bidder may bid
on any given construction permit.**

In addition, we received no comments on our proposal for a single stage
auction, and therefore adopted this proposal in the *2001 Procedures
Public Notice*. In response to the *2004 Auction No. 37 Revised Comment
Public Notice*, one commenter disagreed with the 100 percent activity
level requirement and the potential eligibility reduction for failure to
maintain a 100 percent activity level, on the ground that "these
procedures appear not only complicated, but confusing" to potential
Auction No. 37 participants."[^96] In order 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. Therefore, we adopt this
proposal with the following activity requirement: In each round of the
auction, a bidder desiring to maintain its current eligibility is
required to be active on construction permits representing one hundred
(100) percent of its current eligibility. A bidder's activity will be
the sum of the bidding units associated with the construction permits
upon which it places a bid during the current round and the bidding
units associated with construction permits upon which it is the standing
high bidder. That is, a bidder must either place a bid and/or be the
standing high bidder during each round of the auction.

In response to the *2004 Auction No. 37 Revised Comment Public Notice*,
another commenter suggests the activity rules "should be written to
provide ample time for a single individual who needs to place bids on
numerous construction permits."[^97] Commenters that believe the
activity rules do not provide sufficient time to bid on multiple
allotments should refer to the previous section (*see* Section IV.A.1,
*supra*), for our explanation, in response to a similar comment, of the
bidding round schedule.

Failure to maintain the requisite activity level will result in the use
of an activity rule waiver, if any remain, or a permanent reduction in
the bidder's bidding eligibility, possibly eliminating the bidder from
further bidding in the auction. To the extent that potential bidders
require assistance in understanding these rules, we encourage them to
attend the July 22, 2004, auction seminar, and participate in the
October 29, 2004, mock auction.

### Activity Rule Waivers and Reducing Eligibility

In the *Auction No. 37 Comment Public Notice* and the *2004 Auction No.
37 Revised Comment Public Notice*, we proposed that each bidder in the
auction would be provided five activity rule waivers. Bidders may use an
activity rule waiver in any round during the course of the auction.[^98]
In the *2001 Procedures Public Notice* we adopted this proposal after
receiving no comments on it. In response to the *2004 Auction No. 37
Revised Comment Public Notice*, one commenter suggests we provide three
automatic and three proactive waivers in the auction, with the proactive
waivers being reusable if unsubmitted before the round closes.[^99]

Based upon our experience in previous auctions, **we adopt our proposal
that each bidder will be provided five activity rule waivers that may be
used in any round during the course of the auction**. Use of an activity
rule waiver preserves the bidder\'s current bidding eligibility despite
the bidder\'s activity in the current round being below the required
level. An activity rule waiver applies to an entire round of bidding and
not to a particular construction permit. We are satisfied that our
practice of providing five waivers over the course of the auction
provides a sufficient number of waivers and flexibility to the bidders,
while safeguarding the integrity of the auction.

The FCC Automated Auction System assumes that bidders with insufficient
activity would prefer to use an activity rule waiver (if available)
rather than lose bidding eligibility. Therefore, the system will
automatically apply a waiver (known as an "automatic waiver") at the end
of any round where a bidder\'s activity level is below the minimum
required unless: (1) the bidder has no more activity rule waivers
available; or (2) the bidder overrides the automatic application of a
waiver by reducing eligibility, thereby meeting the minimum
requirements. If a bidder has no waivers remaining and does not satisfy
the required activity level, its current eligibility will be permanently
reduced, possibly eliminating the bidder from further bidding in the
auction.

A bidder that is eligible to bid on more than one construction permit
and has 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
period by using the reduce eligibility function in the bidding system.
In this case, the bidder's eligibility is permanently reduced to bring
the bidder into compliance with the activity rules as described in
"Maximum Eligibility and Activity Rules" (*see* Section IV.A.2.
*above*). Once eligibility has been reduced, a bidder will not be
permitted to regain its lost bidding eligibility.

Finally, a bidder may proactively use an activity rule waiver as a means
to keep the auction open without placing a bid. If a bidder submits a
proactive waiver (using the proactive waiver function in the FCC
Automated Auction System) during a bidding period in which no bids or
withdrawals are submitted, the auction will remain open and the
bidder\'s eligibility will be preserved. However, an automatic waiver
invoked in a round in which there are no new bids or withdrawals will
not keep the auction open. The submission of a proactive waiver cannot
occur after a bid has been submitted in a round and will preclude a
bidder from placing any bids later in that round. **Note: Once a
proactive waiver is submitted during a round, that waiver cannot be
unsubmitted.**

### Auction Stopping Rules

For Auction No. 37, the Bureaus proposed to employ a simultaneous
stopping rule.[^100] Under this rule, bidding will remain open on all
construction permits until bidding stops on every construction permit.
The auction will close for all construction permits when one round
passes during which no bidder submits a proactive waiver, a withdrawal,
or a new bid on any construction permit. After the first such round,
bidding closes simultaneously on all construction permits.

The Bureaus also sought comment on a modified version of the stopping
rule. The modified version of the stopping rule would close the auction
for all construction permits after the first round in which no bidder
submits a proactive waiver, a withdrawal, or a new bid on a construction
permit when it is not the standing high bidder. Thus, absent any other
bidding activity, a bidder placing a new bid on a construction permit
for which it is the standing high bidder would not keep the auction open
under this modified stopping rule.[^101]

The Bureaus further proposed retaining the discretion to keep an auction
open even if no new bids or proactive waivers are submitted and no
previous high bids are withdrawn in a round. In this event, the effect
will be the same as if a bidder had submitted a proactive waiver. Thus,
the activity rule will apply as usual, and a bidder with insufficient
activity will either use an activity rule waiver (if it has any left) or
lose bidding eligibility.

In addition, we proposed that the Bureaus reserve the right to declare
that the auction will end after a designated number of additional rounds
("special stopping rule"). If the Bureaus invoke this special stopping
rule, they will accept bids in the final round(s) only for construction
permits on which the high bid increased in at least one of the preceding
specified number of rounds. We proposed to exercise this option only in
circumstances such as where the auction is proceeding very slowly, where
there is minimal overall bidding activity or where it appears likely
that the auction will not close within a reasonable period of
time.[^102] Before exercising this option, the Bureaus are likely to
attempt to increase the pace of the auction by, for example, increasing
the number of rounds per day, and/or adjusting the minimum acceptable
bids and bid increments for the construction permits. In 2004, one
commenter objected to the modified stopping rule, special stopping rule,
and option to keep the auction open, supporting only the simultaneous
stopping rule.[^103] Another commenter states that the stopping rules
are "too complicated with too many variables," and suggests instead that
the auction for an individual allocation close when no new high bid has
been received for a period of 24 consecutive hours.[^104]

We adopt all of our proposals, set forth above, concerning the auction
stopping rules. Auction No. 37 will begin under the simultaneous
stopping rule, and the Bureaus will retain the discretion to invoke the
other versions of the stopping rule. We believe that these stopping
rules are most appropriate for Auction No. 37, because our experience in
prior auctions demonstrates that the auction stopping rules balance the
interests of administrative efficiency and maximum bidder participation.

### Auction Delay, Suspension, or Cancellation 

In the *Auction No. 37 Comment Public Notice* and the *2004 Auction No.
37 Revised Comment Public Notice*, we proposed that, by public notice or
by announcement during the auction, the Bureaus may delay, suspend, or
cancel the auction in the event of natural disaster, technical obstacle,
evidence of an auction security breach, unlawful bidding activity,
administrative or weather necessity, or for any other reason that
affects the fair and competitive conduct of competitive bidding.[^105]

Because this approach has proven effective in resolving exigent
circumstances in previous auctions, we adopt our proposed auction
cancellation rules. By public notice or by announcement during the
auction, the Bureaus may delay, suspend, or cancel the auction in the
event of natural disaster, technical obstacle, evidence of an auction
security breach, unlawful bidding activity, administrative or weather
necessity, or for any other reason that affects the fair and competitive
conduct of competitive bidding. In such cases, the Bureaus, in their
sole discretion, may elect to resume the auction starting from the
beginning of the current round, resume the auction starting from some
previous round, or cancel the auction in its entirety. Network
interruption may cause the Bureaus to delay or suspend the auction. We
emphasize that exercise of this authority is solely within the
discretion of the Bureaus, and its use is not intended to be a
substitute for situations in which bidders may wish to apply their
activity rule waivers.

## Bidding Procedures

### Round Structure

The initial schedule of bidding rounds will be announced in the public
notice listing the qualified bidders, which is released approximately 10
days before the start of the auction. Each bidding round is followed by
the release of the round results. Multiple bidding rounds may be
conducted in a given day. Details regarding round result formats and
locations will also be included in the qualified bidders public notice.

The FCC has discretion to change the bidding schedule in order to foster
an auction pace that reasonably balances speed with the bidders\' need
to study round results and adjust their bidding strategies. The Bureaus
may increase or decrease the amount of time for the bidding rounds and
review periods, or the number of rounds per day, depending upon the
bidding activity level and other factors.

### Reserve Price or Minimum Opening Bid

The Balanced Budget Act calls upon the Commission to prescribe methods
by which a reasonable reserve price will be required or a minimum
opening bid established when FCC licenses or construction permits are
subject to auction (*i.e.*, because they are mutually exclusive), unless
the Commission determines that a reserve price or minimum opening bid is
not in the public interest.[^106] Consistent with this mandate, the
Commission directed the Bureaus to seek comment on the use of a minimum
opening bid and/or reserve price prior to the start of each
auction.[^107] Among other factors, the Bureaus must consider the amount
of spectrum being auctioned, levels of incumbency, the availability of
technology to provide service, the size of the geographic service areas,
the extent of interference with other spectrum bands, and any other
relevant factors that could have an impact on the spectrum being
auctioned.[^108] The Commission concluded that the Bureaus should have
the discretion to employ either or both of these mechanisms for future
auctions.[^109] This is consistent with policy applied in earlier
spectrum auctions, including Closed Broadcast Auctions Nos. 25, 27, and
54, and AM Broadcast Auction No. 32.

In the *Auction No. 37 Comment Public Notice* and the *2004 Auction No.
37 Revised Comment Public Notice*, the Bureaus proposed to establish
minimum opening bids for Auction No. 37, reasoning that a minimum
opening bid, successfully used in other broadcast auctions, is a
valuable bidding tool, effectively regulating the pace of the
auction.[^110] Specifically, a minimum opening bid was proposed for each
FM allotment listed in Attachment A. The minimum opening bid was
determined by taking into account various factors relating to the
efficiency of the auction and the potential value of the spectrum,
including the type of service and class of facility offered, market
size, population covered by the proposed FM broadcast facility, industry
cash flow data, and recent broadcast transactions. Based on our
experience in using minimum opening bids in other auctions, we believe
that minimum opening bids speed the course of the auction and ensure
that valuable assets are not sold for nominal prices, without unduly
interfering with the efficient awarding of construction permits.[^111]

Several commenters in 2000 asserted that the minimum opening bids and/or
upfront payments identified in Attachment A of the *Auction No. 37
Additional Comment Public Notice* were excessive, and sought reductions
thereof. In general, most commenters claimed that the minimum opening
bids, as well as the upfront payments, may not accurately reflect the
value of the proposed FM construction permits, as determined by class of
facility, market size, and anticipated population coverage, and that
many of the proposals were not consistent with the minimum opening bids
and upfront payments for similar facilities auctioned in Auction No. 25.
After careful consideration of the concerns raised by commenters, we
adjusted the minimum opening bids and upfront payments in the *2001
Procedures Public Notice*, to reduce the possibility of unsold
construction permits and the likelihood that excessive minimum opening
bid and upfront payment amounts could discourage auction participation.
In the *2004 Auction No. 37 Revised Comment Public Notice*, we sought
comment on the minimum opening bid amounts as set forth in the *2001
Procedures Public Notice*.[^112] One commenter suggests that the minimum
opening bid for any allotment be based on a formula of \$2,500 per 5000
persons within a given allotment's projected 70 dBµ contour, except in
certain "high value" areas, and provides a list of specific allotments
that he contends should have their minimum opening bid amounts
reduced.[^113]

Upon consideration of the comments received, we adopt our proposed
minimum opening bids for Auction No. 37. We note that the minimum
opening bids adopted here are 50 percent less than those originally
proposed for this auction. Based on this reduction and the other
considerations, we believe the proposed minimum opening bids are
appropriate. Thus, for these reasons and those set forth in our
discussion of Auction No. 37 upfront payments,[^114] we are not
persuaded that the proposed minimum opening bids are unreasonable.[^115]

The minimum opening bids we adopt for Auction No. 37 are reducible at
the discretion of the Bureaus. We emphasize, however, that such
discretion will be exercised, if at all, sparingly and early in the
auction, *i.e.*, before bidders lose all waivers and begin to lose
substantial eligibility. During the course of the auction, the Bureaus
will not entertain any requests to reduce the minimum opening bid on
specific construction permits.

The specific minimum opening bids for each construction permit available
in Auction No. 37 are set forth in Attachment A.

### Minimum Acceptable Bids and Bid Increments 

In the *Auction No. 37 Comment Public Notice* and again in the *2004
Auction No. 37 Revised Comment Public Notice*, the Commission proposed
to apply a minimum bid increment of 10 percent.[^116] We further
proposed to retain the discretion to change the minimum acceptable bids
and bid increments if circumstances so dictate.[^117] After receiving a
comment in 2000 in support of this proposal,[^118] we adopted the
proposal in the *2001 Procedures Public Notice*. Having received no
further comments, we adopt this proposal here as well*.*

In each round, each eligible bidder will be able to place a bid on a
particular construction permit for which it applied in any of nine
different amounts.[^119] The FCC Automated Auction System will list the
nine bid amounts for each construction permit.

Once there is a standing high bid on a construction permit, the FCC
Automated Auction System will calculate a minimum acceptable bid for
that construction permit for the following round, as described below.
The difference between the minimum acceptable bid and the standing high
bid for each construction permit will define the **bid increment --**
*i.e.*, bid increment = (minimum acceptable bid) -- (standing high bid).
The nine acceptable bid amounts for each construction permit consist of
the minimum acceptable bid (the standing high bid plus one bid
increment) and additional amounts calculated using multiple bid
increments (*i.e.*, the second bid amount equals the standing high bid
plus two times the bid increment, the third bid amount equals the
standing high bid plus three times the bid increment, etc.).

As noted above, for Auction No. 37 we will use a 10 percent bid
increment. This means that the minimum acceptable bid for a construction
permit will be approximately 10 percent greater than the previous
standing high bid received on the construction permit. The minimum
acceptable bid amount will be calculated by multiplying the standing
high bid times one plus the increment percentage --- *i.e.*, (standing
high bid) \* (1.10). We will round the result using our standard
rounding procedure for minimum acceptable bid calculations: results
above \$10,000 are rounded to the nearest \$1,000; results below
\$10,000 but above \$1,000 are rounded to the nearest \$100; and results
below \$1,000 are rounded to the nearest \$10.

At the start of the auction and until a bid has been placed on a
construction permit, the minimum acceptable bid for that construction
permit will be equal to its minimum opening bid. Corresponding
additional bid amounts are calculated using bid increments defined as
the difference between the minimum opening bid times one plus the
percentage increment, rounded as described above, and the minimum
opening bid. That is, the increment used to calculate additional bid
amounts = (minimum opening bid)(1 + percentage increment){rounded} -
(minimum opening bid). Therefore, when the percentage increment equals
0.1 (*i.e.*, 10%), the first additional bid amount will be approximately
ten percent higher than the minimum opening bid; the second, twenty
percent higher; the third, thirty percent higher; etc.

In the case of a construction permit for which the standing high bid has
been withdrawn,[^120] the minimum acceptable bid will equal the second
highest bid received for the construction permit. The additional bid
amounts are calculated using the difference between the second highest
bid times one plus the minimum percentage increment, rounded, and the
second highest bid.

The Bureaus retain the discretion to change the minimum acceptable bids
and bid increments and the methodology for determining the minimum
acceptable bids and bid increments if they determine that circumstances
so dictate. The Bureaus will do so by announcement in the FCC Automated
Auction System. The Bureaus may also use their discretion to adjust the
minimum bid increment without prior notice if circumstances warrant.

### High Bids

At the end of a bidding round, the high bids will be determined based on
the highest gross bid amount received for each construction permit. A
high bid from a previous round is sometimes referred to as a "standing
high bid." A "standing high bid" will remain the high bid until there is
a higher bid on the same construction permit at the close of a
subsequent round. Bidders are reminded that standing high bids are
counted as activity for purposes of the activity rule.[^121]

In the *2004 Auction No. 37 Revised Comment Public Notice*, the Bureaus
proposed to use a random number generator to select a high bid in the
event of identical high bids on a construction permit in a given round
(*i.e.*, tied bids).[^122] No comments were received on this proposal.
Therefore, the Bureaus adopt their proposal. A Sybase® SQL pseudo-random
number generator based on the L'Ecuyer algorithms will be used to assign
a random number to each bid. The tied bid having the highest random
number will become the standing high bid. The remaining bidders, as well
as the high bidder, will be able to submit a higher bid in a subsequent
round. If no bidder submits a higher bid in a subsequent round, the high
bid from the previous round will win the construction permit. If any
bids are received on the construction permit in a subsequent round, the
high bid will once again be determined on the highest gross bid amount
received for the construction permit.

### Bidding

During a round, a bidder may submit bids for as many construction
permits as it wishes (subject to its eligibility), withdraw high bids
from previous bidding rounds, remove bids placed in the same bidding
round, or permanently reduce eligibility. Bidders also have the option
of making multiple submissions and withdrawals in each round. If a
bidder submits multiple bids for a single construction permit in the
same round, the system takes the last bid entered as that bidder\'s bid
for the round. Bidders should note that the bidding units associated
with construction permits for which the bidder has removed or withdrawn
its bid do not count towards the bidder's activity at the close of the
round.

Please note that all bidding will take place remotely either through the
FCC Automated Auction System or by telephonic bidding. (Telephonic bid
assistants are required to use a script when entering bids placed by
telephone. Telephonic bidders are therefore reminded to allow sufficient
time to bid by placing their calls well in advance of the close of a
round. Normally, four to five minutes are necessary to complete a bid
submission.) There will be no on-site bidding during Auction No. 37.

A bidder's ability to bid on specific construction permits in the first
round of the auction is determined by two factors: (1) the construction
permits applied for on FCC Form 175 and (2) the upfront payment amount
deposited. The bid submission screens will allow bidders to submit bids
on only those construction permits for which the bidder applied on its
FCC Form 175.

In order to access the bidding functions of the FCC Automated Auction
System, bidders must be logged in during the bidding round using the
bidder identification number provided in the registration materials, and
the password generated by the SecurID card. Bidders are strongly
encouraged to print bid confirmations for each round [after]{.underline}
they have completed all of their activity for that round.

In each round, eligible bidders will be able to place bids on a given
construction permit in any of nine different amounts.[^123] For each
construction permit, the FCC Automated Auction System interface will
list the nine acceptable bid amounts in a drop-down box. Bidders may use
the drop-down box to select from among the nine bid amounts. The FCC
Automated Auction System also includes an import function that allows
bidders to upload text files containing bid information and a Type Bids
function that allows bidders to enter specific construction permits for
filtering.

Until a bid has been placed on a construction permit, the minimum
acceptable bid for that construction permit will be equal to its minimum
opening bid. Once there is a standing high bid on a construction permit,
the FCC Automated Auction System will calculate a minimum acceptable bid
for that construction permit for the following round, as described in
Section IV.B.3.

Finally, bidders are cautioned to select their bid amounts carefully
because, as explained in the following section, bidders that withdraw a
standing high bid from a previous round, even if the bid was mistakenly
or erroneously made, are subject to bid withdrawal payments.

### Bid Removal and Bid Withdrawal

In the *Auction No. 37 Comment Public Notice* and the *2004 Auction No.
37 Revised Comment Public Notice*, the Commission proposed bid removal
and bid withdrawal procedures.[^124] With respect to bid withdrawals,
the Commission proposed limiting each bidder to withdrawals in no more
than two rounds during the course of the auction. The two rounds in
which withdrawals are used would be at the bidder's discretion. We
received no comments on this issue in 2000, and in the *2001 Procedures
Public Notice* adopted the proposal limiting withdrawal of bids to two
rounds.

**Procedures.** Before the close of a bidding round, a bidder has the
option of removing any bids placed in that round. By using the "remove
bid" function in the bidding system, a bidder may effectively "unsubmit"
any bid placed within that round. A bidder removing a bid placed in the
same round is not subject to withdrawal payments. Removing a bid will
affect a bidder\'s activity for the round in which it is removed,
*i.e.,* a bid that is removed does not count towards bidding activity.
These procedures will enhance bidder flexibility during the auction, and
having received no comments on this proposal, we adopt these procedures
for Auction No. 37.

Once a round closes, a bidder may no longer remove a bid. However, in
later rounds, a bidder may withdraw standing high bids from previous
rounds using the withdraw bid function in the FCC Automated Auction
System (assuming that the bidder has not reached its withdrawal limit).
A high bidder that withdraws its standing high bid from a previous round
during the auction is subject to the bid withdrawal payments specified
in 47 C.F.R. § 1.2104(g). **Note: Once a withdrawal is submitted during
a round, that withdrawal cannot be unsubmitted.**

In previous auctions, we have detected bidder conduct that, arguably,
may have constituted strategic bidding through the use of bid
withdrawals. While we continue to recognize the important role that bid
withdrawals play in an auction, *i.e.*, reducing risk associated with
efforts to secure various construction permits in combination, we
conclude that, for Auction No. 37, adoption of a limit on the use of
withdrawals to two rounds per bidder is appropriate. By doing so we
believe we strike a reasonable compromise that will allow bidders to use
withdrawals. Our decision on this issue is based upon our experience in
prior auctions, particularly the PCS D, E and F block auctions, and 800
MHz SMR auction, and is in no way a reflection of our view regarding the
likelihood of any speculation or "gaming" in this auction.

The Bureaus will therefore limit the number of rounds in which bidders
may place withdrawals to two rounds. These rounds will be at the
bidder's discretion and there will be no limit on the number of bids
that may be withdrawn in either of the rounds. Withdrawals during the
auction will be subject to the bid withdrawal payments specified in 47
C.F.R. § 1.2104(g). Bidders should note that abuse of the Commission's
bid withdrawal procedures could result in the denial of the ability to
bid on a construction permit.

If a high bid is withdrawn, the minimum acceptable bid will equal the
second highest bid received for the construction permit, which may be
less than, or equal to, in the case of tied bids, the amount of the
withdrawn bid.[^125] To set the additional bid amounts, the second
highest bid also will be used in place of the standing high bid in the
formula used to calculate bid increments. The Commission will serve as a
"place holder" high bidder on the construction permit until a new bid is
submitted on that construction permit.

**Calculation***.* Generally, the Commission imposes payments on bidders
that withdraw high bids during the course of an auction.[^126] If a
bidder withdraws its bid and there is no higher bid in the same or
subsequent auction(s), the bidder that withdrew its bid is responsible
for the difference between its withdrawn bid and the high bid in the
same or subsequent auction(s).[^127] In the case of multiple bid
withdrawals on a single construction permit, within the same or
subsequent auctions(s), the payment for each bid withdrawal will be
calculated based on the sequence of bid withdrawals and the amounts
withdrawn. No withdrawal payment will be assessed for a withdrawn bid if
either the subsequent winning bid or any of the intervening subsequent
withdrawn bids, in either the same or subsequent auctions(s), equals or
exceeds that withdrawn bid. Thus, a bidder that withdraws a bid will not
be responsible for any withdrawal payments if there is a subsequent
higher bid in the same or subsequent auction(s).[^128] This policy
allows bidders most efficiently to allocate their resources as well as
to evaluate their bidding strategies and business plans during an
auction while, at the same time, maintaining the integrity of the
auction process. The Bureaus retain the discretion to scrutinize
multiple bid withdrawals on a single construction permit for evidence of
anti-competitive strategic behavior and take appropriate action when
deemed necessary.

In the *Part 1 Fifth Report and Order*, the Commission modified Section
1.2104(g)(1) of the rules regarding assessments of interim bid
withdrawal payments.[^129] As amended, Section 1.2104(g)(1) provides
that in instances in which bids have been withdrawn on a construction
permit that is not won in the same auction, the Commission will assess
an interim withdrawal payment equal to 3 percent of the amount of the
withdrawn bids. The 3 percent interim payment will be applied toward any
final bid withdrawal payment that will be assessed after subsequent
auction of the construction permit. Assessing an interim bid withdrawal
payment ensures that the Commission receives a minimal withdrawal
payment pending assessment of any final withdrawal payment. The *Part 1
Fifth Report and Order* provides specific examples showing application
of the bid withdrawal payment rule.[^130]

### Round Results

Bids placed during a round will not be made public until the conclusion
of that bidding period. After a round closes, the Bureaus will compile
reports of all bids placed, bids withdrawn, current high bids, new
minimum accepted bids, and bidder eligibility status (bidding
eligibility and activity rule waivers), and post the reports for public
access. Reports reflecting bidders\' identities for Auction No. 37 will
be available before and during the auction. Thus, bidders will know in
advance of this auction the identities of the bidders against which they
are bidding.

### Auction Announcements

The FCC will use auction announcements to announce items such as
schedule changes. All FCC auction announcements will be available by
clicking a link on the FCC Automated Auction System.

### Maintaining the Accuracy of FCC Form 175 Information

As noted in Section II.H., after the short-form filing deadline,
applicants may make only minor changes to their FCC Form 175
applications. For example, permissible minor changes include deletion
and addition of authorized bidders (to a maximum of three) and certain
revision of exhibits. Applicants must make these modifications to their
FCC Form 175 electronically and 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:
[auction37@fcc.gov](mailto:auction82@fcc.gov). The electronic mail
summarizing the changes must include a subject or caption referring to
Auction No. 37. The Bureaus request that parties format any attachments
to electronic mail as Adobe^®^ Acrobat^®^ (.pdf) or Microsoft^®^ Word
(.doc) documents.

**A separate copy of the letter should be faxed to the attention of
Kathryn Garland at (717) 338-2850.** Questions about other changes
should be directed to Kenneth Burnley of the Auctions and Spectrum
Access Division at (202) 418-0660.

# V. POST-AUCTION PROCEDURES {#v.-post-auction-procedures .unnumbered}

## Down Payments and Withdrawn Bid Payments

After bidding has ended, the Commission will issue a public notice
declaring the auction closed and identifying winning bidders, down
payments and any withdrawn bid payments due.

Within ten business days after release of the auction closing notice,
each winning bidder must submit sufficient funds (in addition to its
upfront payment) to bring its total amount of money on deposit with the
Commission for Auction No. 37 to 20 percent of the net amount of its
winning bids (gross bids less any applicable new entrant bidding
credits).[^131] In addition, by the same deadline all bidders must pay
any bid withdrawal payments due under 47 C.F.R. § 1.2104(g), as
discussed in "Bid Removal and Bid Withdrawal," Part IV.B.6, *supra*.
(Upfront payments are applied first to satisfy any withdrawn bid
liability, before being applied toward down payments.)

## Final Payments

After the termination of the pleading cycle for petitions to deny,[^132]
the Commission will issue a public notice announcing that it is prepared
to award the construction permits to the winning bidders, if the
applications are uncontested.[^133] Within ten business days after the
date of that public notice, the uncontested winning bidders will be
required to make full payment of the balance of their winning
bids.[^134] Broadcast construction permits will be granted only after
the full and timely payment of winning bids and any applicable late
fees, in accordance with Section 1.2109(a).[^135] The previously filed
long-form applications of the unsuccessful competing bidders will be
dismissed following the grant of the winning bidder's construction
permit.

WTB now employs a final payment deadline different from that described
above.[^136] Consistent with current WTB practice, for Auction No. 37,
the Bureaus are considering rule changes to conform Sections
73.3573(f)(5)(ii) and 73.5006(d) to analogous Part 1 auction
rules.[^137] If adopted, each winning bidder would be required to submit
the balance of the net amount of its winning bids within 10 business
days after the deadline for submitting down payments.

## Long-Form Application 

Within thirty days after the release of the auction closing notice,
winning bidders must electronically submit a properly completed Form
301, Application for FM Construction Permit, and required exhibits for
each construction permit won through Auction No. 37. Winning bidders
claiming new entrant status must include an exhibit demonstrating their
eligibility for the bidding credit.[^138] Further filing instructions
will be provided to auction winners at the close of the auction.[^139]

## Default and Disqualification

Any high bidder that defaults or is disqualified after the close of the
auction (*i.e.*, fails to remit the required down payment within the
prescribed period of time, fails to submit a timely long-form
application, fails to make full payment, or is otherwise disqualified)
will be subject to the payments described in 47 C.F.R. §
1.2104(g)(2).[^140] In such event the Commission may re-auction the
construction permit or offer it to the next highest bidder (in
descending order) at its final bid.[^141] In addition, if a default or
disqualification involves gross misconduct, misrepresentation, or bad
faith by an applicant, the Commission may declare the applicant and its
principals ineligible to bid in future auctions, and may take any other
action that it deems necessary, including institution of proceedings to
revoke any existing licenses or construction permits held by the
applicant.[^142]

## E. Refund of Remaining Upfront Payment Balance {#e.-refund-of-remaining-upfront-payment-balance .unnumbered}

All applicants that submit upfront payments but are not winning bidders
for a construction permit in Auction No. 37 may be entitled to a refund
of their remaining upfront payment balance after the conclusion of the
auction. No refund will be made unless there are excess funds on deposit
from the applicant after any applicable bid withdrawal payments have
been paid. All refunds will be returned to the payer of record, as
identified on the FCC Form 159, unless the payer submits written
authorization instructing otherwise.

Bidders that drop out of the auction completely may be eligible for a
refund of their upfront payments before the close of the auction.
Qualified bidders that have exhausted all of their activity rule
waivers, have no remaining bidding eligibility, and have not withdrawn a
high bid during the auction must submit a written refund request. If you
have completed the refund instructions electronically, then only a
written request for the refund is necessary. If not, the request must
also include wire transfer instructions, Taxpayer Identification Number
("TIN") and FCC Registration Number ("FRN"). Send refund request to:

Federal Communications Commission

Financial Operations Center

Auctions Accounting Group

Gail Glasser

445 12th Street, S.W., Room 1-C864

Washington, D.C. 20554

Bidders are encouraged to file their refund information electronically
using the refund information portion of the FCC Form 175, but bidders
can also fax their information to the Auctions Accounting Group at (202)
418-2843. Once the information has been approved, a refund will be sent
to the party identified in the refund information.

> NOTE: Refund processing generally takes up to two weeks to complete.
> Bidders with questions about refunds should contact Gail Glasser at
> (202) 418-0578.

**Media Contact:**

For press inquiries: Lauren Patrich at (202) 418-7944

**Auctions and Spectrum Access Division, WTB:**

For legal questions: Kenneth Burnley at (202) 418-0660

For general auction questions: Jeff Crooks at (202) 418-0660 or Linda
Sanderson at (717) 338-2888

**Audio Division, MB:**

For legal and service rule questions: Lisa Scanlan or Tom Nessinger at
(202) 418-2700

**- FCC --**

# VI ATTACHMENT A {#vi-attachment-a .unnumbered}

**Construction Permits to be Auctioned** (Place holder for Excel file
Attachment A)

# VII. ATTACHMENT B {#vii.-attachment-b .unnumbered}

FCC AUCTION SEMINAR REGISTRATION FORM

Auction No. 37

The FCC will sponsor a one-day seminar for the Auction No. 37
applicants. The seminar is free of charge and will provide information
about pre-auction procedures, radio service and auction rules, conduct
of the auction, and the FCC Automated Auction System.

Representatives from each company may attend on a reservation basis,
first-come first-served basis until room capacity is filled. Additional
seating may be available on a stand-by basis the day of the seminar. The
seminar will be held:

Thursday, July 22, 2004

Federal Communications Commission

445 12^th^ Street S.W.

Washington, DC 20554

Registration: 9:00 a.m. - 10:00 a.m.

Seminar: 10:00 a.m. -- 2:00 p.m.

If hotel accommodations are needed

Please contact 1-888-225-5322 (option #2) for a list of hotels in the
area

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

To register, complete the form below and

return no later than

Monday, July 19, 2004 to:

FCC Auction 37

Auctions Operations Branch

1270 Fairfield Road

Gettysburg, PA 17325-7245

FAX: 717-338-2850

Phone: 717-338-2888

I/We will attend the Auction No. 37 Seminar, scheduled for Thursday,
July 22, 2004.

Name of attendee:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Name of attendee:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Company name:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Company address:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Phone: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Fax:
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

# ATTACHMENT C

ELECTRONIC FILING AND REVIEW

OF THE FCC FORM 175

Applicants must submit their FCC Form 175 applications electronically.
The FCC recommends submitting your FCC Form 175 via the Internet. As a
contingency, you can submit via the FCC Wide-Area Network. FCC Form 175
applications must be submitted and confirmed by **6:00 p.m. ET on
Friday, August 6, 2004.** Late applications or unconfirmed submissions
of electronic data will not be accepted.

Applicants must click the **SUBMIT Application** button on the
*Submission* page to successfully submit their FCC Form 175. The
electronic filing process consists of an initial filing period and a
resubmission period to make minor corrections. During each filing
period, submitted applications may be updated and amended multiple times
until the filing deadline.

## Software Requirements

Applicants will need to meet the following minimum software
requirements:

-   Web Browser, either of the following:

```{=html}
<!-- -->
```
-   Microsoft® Internet Explorer 4.0 or higher (recommended). Your
    browser must have either Microsoft VM or Java Plug-In Version
    1.3.1_08 installed.

-   Netscape® Communicator™ 4.0 or higher, with Java Plug-In Version
    1.3.1_08.

> Java Plug-In Version 1.3.1_08 is available for downloading at
>
> [***https://java.sun.com/products/archive/index.html***](https://wtbjag1w.fcc.gov/ieplugin/j2re-1_3_0_02-win.exe)

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

-   If you wish to use the download feature on the Search Results page,
    you will need a .tar file extraction utility, e.g., Winzip
    (available at ***http://www.winzip.com***) or Pkzip for Windows
    (available at ***http://www.pkware.com/shareware***).

## Submitting FCC Form 175 Applications

You can submit FCC Form 175 applications electronically via the
Internet. Start your web browser and point it to either
***http://auctions.fcc.gov/*** (primary location) or
***http://auctions2.fcc.gov/*** (secondary location). On the FCC
Auctions page, click **Form 175 Application & Search** to obtain the
Form 175 Homepage.

**Note:** As a contingency, you may submit FCC Form 175 applications via
the FCC Wide Area Network, using Dial-Up Networking. To access the Wide
Area Network, configure your dial-up network to dial either
***202-408-7835*** or ***717-338-0735***. These phone numbers are
located in the Washington, DC, and Gettysburg, PA, respectively. Thus,
they may be long-distance calls, depending on where you reside.

### Logging On

The Form 175 Homepage has a Form 175 Logon area at the top right. This
area provides fields that let you identify yourself to the system. In
these fields, type your assigned FRN (*without* the hyphens) and the
password you created in CORES, respectively, then click the **Logon**
button.

Once you have logged on with your FRN, you can click the **New Form**
link to obtain the *Profile* page for the auction.

### Uploading Attachments

When uploading attachments from the Form 175 *Attachments* page, you may
use a variety of file formats\--including Word 2000 or earlier,
WordPerfect 6.*x* or earlier, Adobe PDF, and ASCII text\--and you should
verify that the files contain all exhibit information. Also note the
following about files to be uploaded:

-   Files may be no larger than 1.5 Mb.

```{=html}
<!-- -->
```
-   Graphics files (e.g., .*bmp, .tiff, .jpg*) and spreadsheets (e.g.,
    Excel, Lotus) are not supported.

-   Word processing files that are uploaded may not contain graphic
    images.

-   You may include hyphens (-) and underscore (\_) symbols in the name
    of a file to be uploaded, but do not use other punctuation marks or
    blank spaces. The FCC system will not be able to convert that file.

-   The path to a file (i.e., the file name and its directory) must not
    exceed 60 characters.

-   Do not upload a password-protected file. The FCC system will not be
    able to open it or convert it.

-   Do not include your TIN in any attachment to be uploaded. Contents
    of attachments become public once the Status PN is released.

The system converts each uploaded attachment to PDF format. (The
conversion process generally completes within 30 minutes.) Until the
system has converted your file to PDF format, the description field
shows *Not converted*.

Repeat this procedure for each additional attachment you want to add.
When you have finished adding attachments, click the **Continue to
CERTIFICATION** button to obtain the *Certification* page.

#### Unreadable Attachment Files

If you are unable to read an attachment file after it has been
converted, please do the following:

1\. Re-upload the attachment.

2\. If the file still has not been converted properly, then simplify the
formatting of the file.

For example, if you are using a Table structure in a WordPerfect
document, remove the Table structure and leave the contents of the
table, then re-upload the attachment.

After you have successfully re-uploaded an attachment, please delete the
old, unreadable attachment files using their **Delete** links.

### Completing the Submission Procedure

Applicants must press the **SUBMIT Application** button on the
*Submission* page to successfully submit their FCC Form 175. Pressing
**SUBMIT Application** produces a *Submission Confirmation* page showing
the assigned FCC Account Number. During each filing period, submitted
applications may be updated and amended multiple times until the filing
deadline.

## Reviewing FCC Form 175 Applications

Once the FCC has completed the 175 Review process, you can view FCC Form
175 applications electronically by searching for them in the FCC
database. Start your web browser and point it to either
***http://auctions.fcc.gov/*** (primary location) or
***http://auctions2.fcc.gov/*** (secondary location). Click the **Form
175 Application & Search** link, then click the **SEARCH** link at the
top of the page. When the *Form 175 Search* page appears, select the
search criteria you want and then click the **Submit** button.

## Help

For technical assistance with using FCC software, contact the FCC
Technical Support Hotline at (202) 414‑1250 (V) or (202) 414-1255 (TTY).
The FCC Technical Support Hotline is generally available Monday through
Friday from 8 a.m. to 6 p.m. ET. *All calls to the FCC Technical Support
Hotline are recorded.*

You can also contact Technical Support via e-mail. To obtain the
address, click the **Support** tab on the Form 175 Homepage.

# IX. ATTACHMENT D {#ix.-attachment-d .unnumbered}

GUIDELINES FOR COMPLETION

**OF FCC FORM 175 AND EXHIBITS**

**A. FCC Form 175**

Because of the significance of the FCC Form 175 application to the
auction, bidders should especially note the following:

**Applicant:** Name given is used as your bidder name in the auction.

**Address:** Applicants must provide a street address (not a Post Office
box number) for the applicant, suitable for mail or private parcel
delivery.

**Legal Classification:** Applicants must indicate their legal
classification. The FCC Form 175 requires the applicant to classify
itself as an individual, joint venture, partnership, trust, corporation,
consortium, association, limited liability company (LLC) or government
entity.

**Applicant Status:** Applicants are requested to indicate their status
as a rural telephone company, minority- and/or women-owned business, so
that the FCC can monitor its performance in promoting economic
opportunities for these designated entities. Applicants that seek a
noncommercial educational ("NCE") permit must indicate their status as a
noncommercial educational applicant and must select "Noncommercial
Educational" on the Profile page.

**Contact person/address:** If the Commission wishes to communicate with
the applicant by telephone or fax, those communications will be directed
to the contact person identified on the FCC Form 175. Space is provided
for an address, telephone number, fax number, and e-mail address. **All
written communication and registration information will be directed to
the applicant's contact person at the address specified on the FCC Form
175.** Applicants must provide a street address for the contact person;
**[no P.O. Box addresses may be used.]{.underline}**

**Authorized Bidders:** Applicants must list the name(s) of the
person(s) (no more than three) authorized to represent them at the
auction. Only those individuals listed on the FCC Form 175 will be
authorized to place or withdraw bids for the applicant during the
auction.

**Bidding Credit Eligibility:** Applicants that qualify for the New
Entrant Bidding Credit must select the applicable bidding credit (25
percent or 35 percent) in the bidding credit eligibility item on the
Form 175. Applicants are advised that this is the sole opportunity to
select "New Entrant" status and claim a bidding credit level (if
applicable). There is no opportunity to change the election once the
short-form filing deadline passes on August 6, 2004.

**Electronic or Telephonic Bidding Options:** Bidders may participate in
the auction either electronically or telephonically, and must specify
their preference. To participate in the auction, every authorized bidder
must have a SecurID card, which the FCC will provide free of charge.

**Construction Permits:** Applicants should select all construction
permit preferences for vacant FM allotments on which they want to be
eligible to bid in the auction. Be advised that there is no opportunity
to change this list once the short-form filing deadline passes on August
6, 2004. It is critically important that you confirm the construction
permits that you have selected because the auction system will not
accept a bid on construction permits for which an applicant has not
applied on its FCC Form 175.

The reference coordinates are also displayed for each listed FM
allotment. Once you have saved a selection, the reference coordinates
are followed by a "Modify" link. Clicking this link produces a page on
which you can change the reference coordinate values to preferred site
coordinates.[^143]

**B. Exhibits and Attachments**

In addition to the FCC Form 175, applicants must submit additional
information required by the FCC\'s rules. If attachments are not
uploaded, the FCC Form 175 application submission process cannot be
completed. Although the FCC does not require a particular format for
this information, it has developed the following guidelines that will
facilitate the processing of short-form applications. The FCC encourages
applicants to submit this information using the following format. The
electronic FCC Form 175 allows an applicant to upload
exhibits/attachments with the FCC Form 175, for FCC review. Once an
attachment has been uploaded, the auctions system converts it to Adobe
PDF format and makes it available for viewing. The applicant should then
try viewing the attachment to verify that it converted successfully.

**If you find that an attachment has not converted properly to Adobe PDF
format, take the following steps:**

1)  *Simplify the formatting of the file. For example, if using a Table
    structure in a WordPerfect document, remove the Table structure
    leaving the contents of the table, re‑save the document.*

2)  *Re‑upload the attachment.*

3)  *When the re-loaded attachment has successfully converted, delete
    the failed attachment.*

**Exhibit A \-- Applicant Identity and Ownership Information**: Section
73.5002 of the broadcast competitive bidding procedural rules specifies
the bidding procedures, certification requirements, and anti-collusion
rules applicable to applications for commercial broadcast services that
are subject to auction. Subsection (b) of that rule requires the timely
submission of short-form applications along with all required
certifications, information and exhibits pursuant to the provisions of
47 C.F.R. § 1.2105(a) and any Commission public notices. Section 1.2105,
in turn, requires the disclosure on the short-form of applicant
ownership information, as set forth in Section 1.2112. Specifically, 47
C.F.R. § 1.2105(a)(2)(ii) requires each applicant to fully disclose the
real party or parties-in-interest, and the addresses and citizenship of
the parties, in an exhibit to its FCC Form 175 application. In addition,
the Section 1.2112 ownership disclosure requirements include, *inter
alia*, a listing of FCC-licensed entities and a description of each such
entity's relationship to the applicant and the applicant's real
parties-in-interest.

Furthermore, each applicant applying for a New Entrant Bidding Credit
must provide detailed ownership information for itself and its
attributable interest holders, as defined by Section 73.3555 of the
Commission\'s rules and by Note 2 to that Section. Regardless of whether
a New Entrant Bidding Credit is being sought, all applicants must
provide the above-mentioned identification and ownership information.

**Exhibit B \-- Agreements with Other Parties/Joint Bidding
Arrangements**: Applicants must attach an exhibit identifying all
parties with whom they have entered into any agreements, arrangements or
understandings of any kind that relate to the construction permits being
auctioned, including any relating to the post-auction market structure.
*See* 47 C.F.R. § 1.2105(a)(2)(viii).

Be aware that pursuant to Certification (4) on the FCC Form 175, the
applicant certifies that it has not entered and will not enter into any
explicit or implicit agreements or understandings of any kind with
parties not identified in the application regarding bid amounts, bidding
strategies, or the particular construction permits on which the
applicant will or will not bid. *See* 45 C.F.R. § 1.2105(a)(2)(ix*).
Except to the extent provided in 47 C.F.R. § 73.5002 (d),* the
prohibition of collusion set forth in 47 C.F.R. § 1.2105 (c) becomes
effective upon the filing of short-form applications. *To prevent
collusion, the Commission\'s Rules generally* *prohibit competing
applicants from communicating concerning bids, bidding strategies, or
settlements during the period between the initial short-form
applications filing deadline and the deadline for down payments on
construction permits/licenses won in the auction.* 47 C.F.R. §
1.2105(c).

**Exhibit C \-- Status as a New Entrant Bidding Credit Recipient:** An
applicant claiming that it qualifies for a 35 percent new entrant
bidding credit must provide a certification, under penalty of perjury,
that neither it nor any of its attributable interest holders have any
attributable interests in any other media of mass communications, as
defined in 47 C.F.R. § 73.5008. An applicant claiming that it qualifies
for a 25 percent new entrant bidding credit must provide a
certification, under penalty of perjury, that neither it nor any of its
attributable interest holders have attributable interests in more than
three media of mass communications, as defined in 47 C.F.R. § 73.5008.
In addition, applicants claiming a 25 percent credit shall identify and
describe such media of mass communications. *See* 47 C.F.R. §§ 73.5007
and 73.5008.

Attributable interests held by a winning bidder in existing low power
television, television translator, or FM translator facilities will not
be counted among the bidder's other mass media interests in determining
eligibility for a bidding credit.[^144] However, the new entrant bidding
credit is not available to a winning bidder if it, and/or any individual
or entity with an attributable interest in the winning bidder, have an
attributable interest in any existing media of mass communications, as
defined by 47 C.F.R. § 73.5008, in the same area as the proposed
broadcast facility.[^145] Full-service noncommercial educational
stations, on both reserved and non-reserved channels, are included among
"media of mass communications" as defined in Section 73.5008(b).[^146]

**Exhibit D -- Information Required of All Applicants Regarding Prior
Defaults and Prior Delinquencies:** Each applicant must include an
Exhibit D containing a statement made under penalty of perjury
indicating whether the applicant, its affiliates, its controlling
interests, or the affiliates of its controlling interests have ever been
in default on any Commission construction permits or licenses or have
ever been delinquent on any non-tax debt owed to any Federal agency. The
applicant must provide such information for itself, for each of its
controlling interests and affiliates, and for each affiliate of its
controlling interests as defined in 47 C.F.R. § 1.2110 of the
Commission's rules (as amended in the *Part 1 Fifth Report and Order*).

**Exhibit E \-- Information Requested of Designated Entities:**
Applicants owned by minorities or women, as defined in 47 C.F.R. §
1.2110(c), or that are rural telephone companies, may attach an exhibit
regarding this status. This information, in conjunction with the
information requested on the FCC Form 175, will assist the Commission in
monitoring the participation of these \"designated entities\" in its
auctions.

**Exhibit F -- Miscellaneous Information:** Applicants wishing to submit
additional information may do so in Exhibit F.

**Waivers:** Applicants requesting waiver of any rules must submit a
statement of reasons sufficient to justify the waiver sought. *See* 47
C.F.R. § 1.3.

**Certifications:** Applicants should carefully read the list of
certifications on the FCC Form 175. These certifications help to ensure
a fair and competitive auction and require, among other things,
disclosure to the Commission of certain information on applicant
ownership and agreements or arrangements concerning the auction.
Submission of an FCC Form 175 application constitutes a representation
by the certifying official that he or she is an authorized
representative of the applicant, has read the form\'s instructions and
certifications, and that the contents of the application and its
attachments are true and correct. Submission of a false certification to
the Commission may result in penalties, including monetary forfeitures,
license forfeitures, ineligibility to participate in future auctions,
and/or criminal prosecution.

**Completeness:** Applicants must submit all information required by the
FCC Form 175 and by applicable rules. Failure to submit required
information by the resubmission date will result in dismissal of the
application and inability to participate in the auction. *See* 47 C.F.R.
§ 1.2105(b).

**NOTE: Applicants must press the "SUBMIT Application" button on the
"Submission" page of the electronic form to successfully submit their
FCC Form 175.**

**Continuing Accuracy:** Section 1.65 of the Commission's rules requires
an applicant to maintain the accuracy and completeness of information
furnished in its pending FCC Form 175 short-form application and
exhibits and to notify the Commission within 30 days of any substantial
change that may be of decisional significance to that application.
Applicants are reminded that they consent to be audited in the
certification section of the FCC Form 175 (see certification item number
6).

Applicants are reminded that all information required in connection with
applications to participate in spectrum auctions is necessary to
determine the applicants\' qualifications, and as such will be available
for public inspection. Required proprietary information may be redacted,
or confidentiality may be requested, following the procedures set forth
in 47 C.F.R. § 0.459. Such requests must be submitted by electronic mail
to the attention of Margaret Wiener, Chief, Auctions and Spectrum Access
Division, at the following address: <auction37@fcc.gov>, in which case
the applicant must indicate in Exhibit F that it has filed a
confidentiality request. Because the required information bears on
applicants\' qualifications, the FCC envisions that confidentiality
requests will not be routinely granted.

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.[^147]

The electronic mail summarizing any changes must include a subject or
caption referring to Auction No. 37. The Bureaus request that parties
format any attachments to electronic mail as Adobe^®^ Acrobat^®^ (pdf)
or Microsoft^®^ Word documents.

**A separate copy of the notice of any changes should be faxed to the
attention of Kathryn Garland at (717) 338-2850.**

# X. ATTACHMENT E {#x.-attachment-e .unnumbered}

**AUCTION-SPECIFIC INSTRUCTIONS FOR**

**FCC REMITTANCE ADVICE (FCC FORM 159-February 2003 Edition)**

## A. Upfront Payments {#a.-upfront-payments .unnumbered}

The following information supplements the standard instructions for FCC
Form 159 (Revised 2/03), and is provided to help ensure correct
completion of FCC Form 159 for upfront payments for Auction No. 37.
Applicants need to complete FCC Form 159 carefully, since:

-   **Mistakes may affect their bidding eligibility; and**

-   **Lack of consistency between information set forth in FCC Form 159
    (Revised 2/03), FCC Form 175, long-form application, and
    correspondence about an application may cause processing delays.**

Therefore appropriate cross-references between the FCC Form 159
Remittance Advice and the FCC

Form 175 Short Form Application are described below:

Block

Number Required Information

1 LOCKBOX \# - Enter "358435"

> 2 Payer Name - Enter the name of the person or company making the
> payment.
>
> If the applicant itself is the payer, this entry would be the same as
> FCC Form 175.
>
> 3 Total Amount Paid - Enter the amount of the upfront payment
> associated with the
>
> FCC Form 159 (Revised 2/03).

8.  Street Address, City, State, ZIP Code - Enter the street mailing
    address (**not Post**

> **Office box number**) where mail should be sent to the payer. If the
> applicant is the
>
> payer, these entries would be the same as FCC Form 175 from the
> Applicant
>
> Information section.
>
> 9 Daytime Telephone Number - Enter the telephone number of a person
> knowledgeable
>
> about this upfront payment.
>
> 10 Country Code - For addresses outside the United States, enter the
> appropriate postal
>
> country code (available from the Mailing Requirements Department of
> the U.S. Postal Service).

11. Payer FRN -- Enter the payer's ten-digit FCC Registration Number
    (FRN)

> registered in the Commission Registration System (CORES).
>
> 24A Payment Type Code -- Enter "A37U"
>
> 25A Quantity - Enter the number "1"
>
> 26A Fee Due - Amount of Upfront Payment
>
> 27A Total Fee - Will be the same amount as 26A.
>
> 28A FCC Code 1 - Enter the number "37" (indicating Auction No. 37).

NOTES:

-   Do not use Remittance Advice (Continuation Sheet), FCC Form 159-C,
    for upfront payments.

-   If applicant is different from the payer, complete blocks 13 through
    21 for the applicant, using the same information shown on FCC
    Form 175. Otherwise leave them blank.

-   Since credit card payments will not be accepted for this auction,
    leave Section E blank.

## B. Winning Bidder Requirements, Down Payments and Final Payments {#b.-winning-bidder-requirements-down-payments-and-final-payments .unnumbered}

Specific information regarding down payments and final payments will be
included in a post-auction public notice announcing the winning bidders.

# ATTACHMENT F 

SUMMARY LISTING OF DOCUMENTS FROM THE COMMISSION

AND THE WIRELESS TELECOMMUNICATIONS BUREAU

ADDRESSING APPLICATION OF THE ANTI‑COLLUSION RULES

## Commission Decisions:

*Second Report and Order* in PP Docket No. 93‑253, FCC 94‑61, 9 FCC Rcd
2348, 2386‑2388 (1994), paragraphs 221‑226.

*Fifth Report and Order in* PP Docket No. 93‑253, FCC 94‑178, 9 FCC Rcd.
5532, 5570‑5571 (1994), paragraphs 91‑92.

*Fourth Memorandum Opinion and Order* in PP Docket No. 93‑253, FCC
94‑264, 9 FCC Rcd. 6858, 6866‑6869 (1994), paragraphs 47‑60.

*Second Memorandum Opinion and Order* in PP Docket No. 93‑253, FCC
94‑215, 9 FCC Rcd. 7245, 7253‑7255 (1994), paragraphs 48‑55.

*Memorandum Opinion and Order* in PP Docket No. 93‑253, FCC 94‑295, 9
FCC Rcd. 7684, 7687‑7689 (1994), paragraphs 8‑12.

In re Commercial Realty St. Pete, *Notice of Apparent Liability for
Forfeiture,* 10 FCC Rcd. 4277 (1995), In re Commercial Realty St. Pete,
*Memorandum Opinion and Order,* 11 FCC Rcd. 15,374 (1996).

In re Applications of Mercury PCS II, LLC, *Notice of Apparent Liability
for Forfeiture,* 12 FCC Rcd. 17,970 (1997) (petition for partial
reconsideration pending).

Amendment of Part 1of the Commission's rules ‑‑ Competitive Bidding
Procedures, Allocation of Spectrum Below 5 GHz Transferred from Federal
Government Use, 4660‑4685 MHz, WT Docket No. 97‑82, ET Docket No. 94‑32,
FCC 97‑413, *Third Report and Order and Second Further Notice of
Proposed Rule Making,* 13 FCC Rcd. 374, 463‑469 (1997), paragraphs
155-­166.

In re Application of US West Communications, Inc., *Notice of Apparent
Liability for Forfeiture,*13 FCC Rcd 8286 (1998); In the Matter of
Notice of Apparent Liability for Forfeiture of US West Communications,
Inc., *Order*, FCC 99-90 (May 7, 1999).

In re Application of Western PCS BTA I Corporation, *Notice of Apparent
Liability for Forfeiture, FCC* 98‑42 (March 16, 1998); In the Matter of
Notice of Apparent Liability for Forfeiture of Western PCS BTA 1
Corporation, *Memorandum Opinion and Orde*r, 14 FCC Rcd 21571, 21577-78,
¶ 20 (rel. Dec. 13, 1999).

In the Matter of Amendment of Part 1 of the Commission's
Rules---Competitive Bidding Procedures, *Seventh Report and Order*, 16
FCC Rcd 17546 (2001).

In re Application of Todd Stuart Noordyk, for a New FM Station on
Channel 260A at Manistique, Michigan, *Memorandum Opinion and Orde*r, 16
FCC Rcd 18113 (2001).

## Wireless Telecommunications Bureau Decisions:

Amendment of Parts 21 and 74 of the Commission's rules with Regard to
Filing Procedures in the Multipoint Distribution Service and in the
Instructional Television Fixed Service, *Order,* 11 FCC Rcd. 9655
(Wireless Tel. Bur. 1995).

In re Applications of GWI PCS, Inc. For Authority to Construct and
Operate Broadband PCS Systems Operating on Frequency Block C,
*Memorandum Opinion and Order,* 12 FCC Rcd. 6441 (Wireless Tel. Bur.
1997).

In re Applications of Mercury PCS II, LLC, For Facilities in the
Broadband Personal Communications Services in the D, E, and F Blocks,
*Memorandum Opinion and Order on Reconsideration,* 12 FCC Rcd. 18,093
(Wireless Tel. Bur. 1997).

In the Matter of Applications of High Plains Wireless, L.P., For
Authority to Construct and Operate Broadband PCS Systems on Frequency
Blocks D, E, and F, *Memorandum Opinion and Order,* 12 FCC Rcd. 19,627
(Wireless Tel. Bur. 1997).

In the Matter of Applications of Mercury PCS II, LLC, For Authority to
Construct and Operate Broadband PCS Systems on Frequency Blocks D, E,
and F, *Memorandum Opinion and Order,* 13 FCC Rcd. 5756 (Wireless Tel.
Bur. 1997).

### Public Notices:

Wireless Telecommunications Bureau Clarifies Spectrum Auction
Anti‑Collusion Rules, *Public Notice,* 11 FCC Rcd. 9645 (1995).

FCC Staff Clarifies Application of Anti‑Collusion Rule to Broadband PCS
'C' Block Reauction, *Public Notice,* 11 FCC Rcd. 7031 (1996).

Wireless Telecommunications Bureau Provides Guidance on the
Anti‑Collusion Rule for D, E and F Block Bidders, *Public* *Notice,* 11
FCC Rcd. 10,134 (1996).

Wireless Telecommunications Bureau Responds to Questions About the Local
Multipoint Distribution Service Auction, *Public Notice*, DA 98-37 (rel.
January 9, 1998).

### Letters from the Office of General Counsel and the Wireless Telecommunications Bureau:

*Letter to Gary M. Epstein and James H. Barker from William E. Kennard,
General Counsel, Federal Communications Commission* (released October
25, 1994).

*Letter to Alan F. Ciamporcero from William E Kennard, General Counsel,
Federal Communications Commission* (released October 25, 1996).

*Letter to R. Michael Senkowski from Rosalind K. Allen, Acting Chief,
Commercial Radio Division, Wireless Telecommunications Bureau* (released
December 1, 1994).

*Letter to Leonard J. Kennedy from Rosalind K. Allen, Acting Chief,
Commercial Radio Division, Wireless Telecommunications Bureau* (released
December 14, 1994).

*Letter to Jonathan D. Blake and Robert J. Rini from Kathleen O'Brien
Ham, Chief, Auctions Division, Wireless Telecommunications Bureau,* DA
95‑2404 (released November 28, 1995).

*Letter to Mark Grady from Kathleen O'Brien Ham, Chief, Auctions
Division, Wireless Telecommunications Bureau,* 11 FCC Rcd. 10,895
(1996).

*Letter to David L. Nace from Kathleen O'Brien Ham, Chief, Auctions
Division, Wireless Telecommunications Bureau,* 11 FCC Rcd. 11,363
(1996).

*Letter to Elliott J. Greenwald from Christopher J. Wright, General
Counsel, Federal Communications Commission* (released April 6, 1998).

*Letter to Robert Pettit, Wiley, Rein & Fielding from Margaret W.
Wiener, Chief, Auctions and Industry Analysis Division, Wireless
Telecommunications Bureau*, DA 00-2905 (released December 26, 2000).

### Civil Actions Initiated by U.S. Department of Justice:

*U.S. v. Omnipoint Corp.,* Proposed Final Judgments and Competitive
Impact Statements, Department of Justice, 63 FR 65,228 (November 25,
1998).

"Justice Department Sues Three Firms Over FCC Auction Practices," *Press
Release, U.S.* Department of Justice (November 10, 1998).

Complaint, *U.S.* *v. Omnipoint Corp.,* No. 1:98CV02750 (D.D.C. November
10, 1998).

Complaint, *U.S. v.* *Mercury PCS II, L.L C.,* No. 1:98CV02751 (D.D.C.
November 10, 1998).

Complaint, *U.S. v. 21st Century Bidding Corp., No.* 1:98CV02752 (D.D.C.
November 10, 1998).

**How to Obtain Copies of the Anti-Collusion Decisions:**

Many of the documents listed in this attachment can be retrieved from
the following Commission web site:
[http://wireless.fcc.gov/auctions/anticollusion]{.underline}

The documents may be located by using our search engine (select the link
"search"). Documents retrieved from the web site are available in
various formats including Word, WordPerfect, Acrobat Reader, Excel, and
ASCII Text. To review a document in its entirety, including footnotes,
it is necessary to access the document in WordPerfect, MS Word, or
Acrobat Reader.

Additionally, all of the documents can be ordered in hard copy for a fee
from the Commission's contractor, Best Copy and Printing, Inc., at (202)
488-5300.

[^1]: Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251, §
    3002(a) (1997) (codified at 47 U.S.C. § 309(j)(4)(F)) ("Balanced
    Budget Act").

[^2]: *See* "Revised Inventory and Auction Start Date for FM Broadcast
    Construction Permits, Auction Rescheduled for November 3, 2004;
    Comment Sought on Reserve Prices or Minimum Opening Bids and Other
    Auction Procedures," *Public Notice*, 19 FCC Rcd 6907 (WTB/MB 2004)
    ("*2004 Auction No. 37 Revised Comment Public Notice*"). The comment
    and reply comment deadlines were extended in "Auction for FM
    Broadcast Construction Permits Deadlines Extended for Comments and
    Reply Comments," *Public Notice*, DA 04-1275 (MB/WTB rel. May 5,
    2004).

[^3]: Comments were filed by: American Handicapped Defense Union
    ("AHDU"); Reddy, Begley & McCormick, LLP ("Reddy Begley"); Summit
    Media Broadcasting, LLC ("Summit Media"); Hodson Broadcasting
    ("Hodson"); Langley Broadcast Consulting ("Langley"); Kevin M.
    Fitzgerald ("Fitzgerald"); Richard Van Zandt ("Van Zandt"); and
    Minority Media and Telecommunications Council ("MMTC").  

[^4]: *See 2004 Auction No. 37 Revised Comment Public Notice*, 19 FCC
    Rcd at 6908-10.

[^5]: ^?^ *See* "FM Broadcast Auction Scheduled for February 21, 2001;
    Comment Sought on Reserve Prices or Minimum Opening Bids and Other
    Auction Procedural Issues," *Public Notice*, 15 FCC Rcd 18081
    (WTB/MMB 2000) (\"*Auction No. 37 Comment Public Notice*\").

[^6]: ^?^ The Commission\'s authority to establish a reserve price or
    minimum opening bid is set forth in 47 C.F.R. § 1.2104 (c) and (d).

[^7]: *See* "Auction of Additional FM Broadcast Construction Permits to
    be Included In Auction No. 37 Scheduled For February 21, 2001,"
    *Public Notice*, 15 FCC Rcd 25486 (WTB/MMB 2000) (\"*Auction No. 37
    Additional Comment Public Notice*\"). Because the market numbers
    were revised to reflect the addition of these eight vacant FM
    allotments, the Attachment A in the *Auction No. 37 Additional
    Comment Public Notice* superceded the Attachment A in the *Auction
    No. 37 Comment Public Notice*. The Bureaus received twenty comments
    and three reply comments in response to the *Auction No. 37 Comment
    Public Notice* and the *Auction No. 37 Additional Comment Public
    Notice.* []{.mark}

[^8]: "Auction Notice and Filing Requirements for FM Broadcast
    Construction Permits; Auction Rescheduled from February 21, 2001 to
    May 9, 2001; Minimum Opening Bids and Other Procedural Issues,"
    *Public Notice*, 16 FCC Rcd 928 (WTB/MMB 2001) ("*2001 Procedures
    Public Notice*").

[^9]: Reexamination of the Comparative Standards for Noncommercial
    Educational Applicants, MM Docket 95-31, *Report and Order*, 15 FCC
    Rcd 7386 (2000) ("*NCE Report and Order")*; *Memorandum Opinion and
    Order*, 16 FCC Rcd 5074 (2001) ("*NCE MO&O*"); *Second Report and
    Order*, 18 FCC Rcd 6691 (2003) ("*NCE Second Report and Order*").
    Petitions for reconsideration of the *NCE Second Report and Order*
    are pending with the Commission. *See* "Petitions for
    Reconsideration and Clarification of Action in Rulemaking
    Proceeding," *Public Notice*, Report No. 2614 (rel. July 1, 2003).

[^10]: "Media Bureau Opens Window to Permit Noncommercial Educational
    Reservation Showings for Certain Vacant FM Allotments," *Public
    Notice*, 18 FCC Rcd 19600 (MB 2003). The *Public Notice* established
    a November 21, 2003, deadline for filing petitions for rulemaking to
    amend the FM Table of Allotments, 47 C.F.R. § 73.202, to reserve FM
    channels.

[^11]: Attachment A to this Public Notice reflects the channel
    substitutions or reference coordinate modifications made after the
    release of the *2004 Auction No. 37 Revised Comment Public Notice*.

[^12]: *See* Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding for Commercial Broadcast and Instructional
    Television Fixed Service Licenses, *First Report and Order* in MM
    Docket No. 97-234, GC Docket No. 92-52 and GEN Docket No. 90-264, 13
    FCC Rcd 15920, 15961, 15974-15975 (1998) ("*Broadcast First Report
    and Order*"), *on recon., Memorandum Opinion and Order*, 14 FCC Rcd
    8724 (1999), *on further recon., Memorandum Opinion and Order*, 14
    FCC Rcd 14521(1999).

[^13]: With regard to the FM service, the Commission gave applicants the
    opportunity to submit a set of preferred site coordinates as an
    alternative to the reference coordinates for the vacant FM allotment
    upon which they intend to bid. *See Broadcast First Report and
    Order*, 13 FCC Rcd at 15974 and n.153. Further information regarding
    preferred site coordinates may be found in Attachment D to this
    Public Notice.

[^14]: *Broadcast First Report and Order*, 13 FCC Rcd at 15978-80, ¶¶
    149-154. *See also* Implementation of Section 309(j) of the
    Communications Act -- Competitive Bidding, PP Docket No. 93-252,
    *Second Report and Order*, 9 FCC Rcd 2348, 2376, ¶ 165 (1994).

[^15]: Any applicant that submits a short-form application that is
    accepted for filing but fails to timely submit an upfront payment
    will retain its place in the MX Group but, having purchased no
    bidding eligibility, will not be eligible to bid.

[^16]: This Public Notice supercedes the *2001 Procedures Public
    Notice*.

[^17]: *See* *generally* *Broadcast First Report and Order*.

[^18]: *See* Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding for Commercial Broadcast and Instructional
    Television Fixed Service Licenses, MM Docket No. 97-234, *Memorandum
    Opinion and Order*, 14 FCC Rcd 8724 (1999) ("*Broadcast
    Reconsideration Order*").

[^19]: *See* Implementation of Section 309(j) of the Communications Act
    -- Competitive Bidding for Commercial Broadcast and Instructional
    Television Fixed Service Licenses, MM Docket No. 97-234, *Memorandum
    Opinion and Order*, 14 FCC Rcd 12541 (1999) ("*New Entrant Bidding
    Credit Reconsideration Order*").

[^20]: *See*, *e.g*., Amendment of Part 1 of the Commission\'s Rules --
    Competitive Bidding Procedures, *Order on Reconsideration of the
    Third Report and Order, Fifth Report and Order, and Fourth Further
    Notice of Proposed Rule Making*, 15 FCC Rcd 15293 (2000) ("*Part 1
    Recon. Order and Part 1 Fifth Report and Order, Fourth Further
    Notice of Proposed Rule Making*"); Amendment of Part 1 of the
    Commission\'s Rules \-- Competitive Bidding Procedures, *Seventh
    Report and Order*, 16 FCC Rcd 17546 (2001) ("*Part 1 Seventh Report
    and Order*"); Amendment of Part 1 of the Commission's Rules \--
    Competitive Bidding Procedures, *Eighth Report and Order*, 17 FCC
    Rcd 2962 (2002); Amendment of Part 1 of the Commission's Rules -
    Competitive Bidding Procedures, WT Docket No. 97-82, *Second Order
    on Reconsideration of the Third Report and Order, and Order on
    Reconsideration of the Fifth Report and Order*, 18 FCC Rcd 10180
    (2003).

[^21]: *See* 47 C.F.R. §§ 1.2105(a)(2)(viii); 1.2105(c). *See also* 47
    C.F.R. § 73.5002; *Part 1 Seventh Report and Order*, 16 FCC Rcd at
    17546.

[^22]: *Id*. at 17549 n.12.

[^23]: 47 C.F.R. § 1.2105(c)(7)(i);

[^24]: *See* In re 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,* 13 FCC Rcd 11973, 11977, ¶ 11 (1998) ("*Nevada
    Wireless*"*)*.

[^25]: *See id*. at 11978.

[^26]: *See* 47 C.F.R. § 1.2105(c)(7)(i).

[^27]: *See* "Wireless Telecommunications Bureau Clarifies Spectrum
    Auction Anti-Collusion Rules," *Public Notice*, DA 95-2244, 11 FCC
    Rcd 9645 (1995).

[^28]: 47 C.F.R. § 1.65.

[^29]: 47 C.F.R. § 1.2105(c)(6); *see also* *Part 1* *Seventh Report and
    Order*, 16 FCC Rcd at 17555, ¶ 17.

[^30]: 47 C.F.R. § 1.2107(d).

[^31]: *See* 47 C.F.R. § 1.2109(d).

[^32]: *Id.*

[^33]: One commenter suggests that we allow potential applicants time to
    perform due diligence before the short-form application deadline.
    Langley Comments at 1. The list of FM allotments available for
    auction was released with the *2004 Auction No. 37 Revised Comment
    Public Notice* on April 15, 2004, providing sufficient time for
    potential applicants to perform due diligence before the short form
    application filing deadline on August 6, 2004.

[^34]: *See* 47 C.F.R. § 73.202.

[^35]: *See*, *e.g.*, *Charlotte Amalie, Frederiksted, and
    Christiansted, U.S. Virgin Islands*, 19 FCC Rcd 30 (MB 2004);
    *Cheyenne, Wyoming and Gering, Nebraska*, 15 FCC Rcd 7528 (MMB
    2000); *Circleville, Ohio*, 9 F.C.C.2d 159 (1967).

[^36]: *See*, *e.g.*, *Fort Collins, Westcliffe and Wheat Ridge,
    Colorado*, 19 FCC Rcd 4821 (MB 2004), in which the Commission
    substituted Channel 249A for vacant Channel 227A at Westcliffe,
    Colorado, FM 061. The reference coordinates for Channel 249A at
    Westcliffe are 38-03-21 and 105-30-02 (effective date is May 3,
    2004). In *Arthur and Hazelton, North Dakota*, MB Docket No. 03-208,
    DA 04-1542 (rel. May 28, 2004), the Commission substituted Channel
    277C for vacant Channel 280C at Hazelton, North Dakota, FM 197. The
    reference coordinates for Channel 277C at Hazelton are 46-22-06 and
    100-55-49 (effective date is July 12, 2004). In *Dinosaur and
    Rangely, Colorado et al*., MB Docket No. 02-290, DA 04-1650 (rel.
    June 10, 2004), the Commission substituted Channel 266C1 for vacant
    Channel 247C1 at Dinosaur, Colorado, FM 047; Channel 264C2 for
    vacant Channel 257C2 at Monroe, Utah, FM 316; Channel 250C2 for
    vacant Channel 259C1 at Green River, Wyoming, FM 348; and Channel
    258A for vacant Channel 259A at Saratoga, Wyoming, FM 357 (effective
    date is July 27, 2004). Attachment A to this Public Notice reflects
    the new channel substitutions and reference coordinate changes.

[^37]: *See* 47 C.F.R. § 1.2105.

[^38]: 47 C.F.R. Chapter 1, Part 1, Subpart I.

[^39]: *Id*. §§ 1.1305-1.1319.

[^40]: Hodson Comments at 6-7.

[^41]: *Id*. at 7.

[^42]: Van Zandt Comments at 1-2.

[^43]: 47 C.F.R. § 73.3555(a).

[^44]: Moreover, petitions for reconsideration of a final action in a
    notice and comment rulemaking proceeding must be filed within 30
    days from the date of public notice of such action. *See* 47 C.F.R.
    § 1.429(a), (d).

[^45]: As discussed generally in the *NCE Second Report and Order*, a
    window open for nonreserved vacant FM allotments provides a filing
    opportunity for both NCE and commercial FM applicants. However, as
    discussed in Section III.C., *infra*, while non-mutually exclusive
    applications will not be resolved through competitive bidding, any
    applications specifying NCE facilities that are mutually exclusive
    with any applications specifying commercial facilities will be
    returned as unacceptable for filing. *See* 47 C.F.R. § 73.5002(b).

[^46]: Reddy Begley Comments at 2.

[^47]: Section 73.5002 of the Commission's rules specifies the bidding
    procedures, certification requirements and the anti-collusion rules
    applicable to mutually exclusive applications for commercial
    broadcast services subject to auction. Subsection (b) of that rule
    requires the timely submission of short-form applications, along
    with all required certifications, information, and exhibits,
    pursuant to the provisions of 47 C.F.R. § 1.2105(a) and any
    Commission public notices. Section 1.2105, in turn, requires the
    disclosure on the short form of applicant ownership information as
    set forth in Section 1.2112. Note that both of the aforementioned
    Part 1 rule sections were revised in the *Part 1 Fifth Report and
    Order.*

[^48]: 47 C.F.R. §§ 1.2105(a)(2)(viii), (c)(1).

[^49]: 47 C.F.R*.* § 1.2105(a)(2)(ix).

[^50]: *See* *supra* Section 1.B.2.

[^51]: 47 C.F.R. § 1.2105(c)(4)(i), (ii).

[^52]: *See* In re Application of Todd Stuart Noordyk, for a New FM
    Station on Channel 260A at Manistique, Michigan, *Memorandum Opinion
    and Orde*r, 16 FCC Rcd 18113, 18117 (2001); *see also* [Amendment of
    Part 1 of the Commission\'s Rules - Competitive Bidding Procedures,
    WT Docket No. 97- 82, Allocation of Spectrum Below 5 GHz Transferred
    from Federal Government Use, 4660-4685 MHz, ET Docket No. 94-32,
    *Third Report and Order and Second Further Notice of Proposed Rule
    Making*, 13 FCC Rcd 374, 467
    (1997)](http://web2.westlaw.com/find/default.wl?DB=4493&SerialNum=1997265515&FindType=Y&ReferencePositionType=S&ReferencePosition=467&AP=&RS=WLW4.04&VR=2.0&FN=_top&SV=Split&MT=Westlaw).

[^53]: "Media of mass communication" include both commercial and NCE
    full-power broadcast stations.

[^54]: The fact that, on August 6, 2004, a bidder has a pending or
    granted application to assign or transfer control of a media
    interest shall not be sufficient to avoid attribution. Bidders must
    have consummated the transaction by August 6, 2004 to avoid
    attribution. Thus, a bidder could not qualify for a bidding credit,
    nor upgrade a previously claimed bidding credit, based upon
    ownership or positional changes occurring after the short-form
    filing deadline. *See Liberty Productions, a Limited Partnership*,
    16 FCC Rcd 12061 (2001) ("*Liberty Productions*").

[^55]: *See* 47 C.F.R. § 73.3555 Note 2.

[^56]: *See* *Clarification of Commission Policies Regarding Spousal
    Attribution*, 7 FCC Rcd 1920 (1992).

[^57]: *See Review of the Commission's Regulations Governing Attribution
    of Broadcast and Cable/MDS Interests*, *Report and Order,* MM Docket
    No. 94-150, 14 FCC Rcd 12559 (1999) (prior history omitted).

[^58]: *See* 47 C.F.R. § 73.5008(c).

[^59]: Further, *any* bidder asserting new entrant status must have *de
    facto* as well as *de jure* control of the entity claiming the
    bidding credit. 47 C.F.R. § 73.5007. Typically, *de jure* control is
    evidenced by ownership of at least 50.1 percent of an entity\'s
    voting stock or equivalent level of interest in cases where the
    bidder is not a corporate entity. *De facto* control is determined
    on a case-by-case basis.

[^60]: *Broadcast Reconsideration Order*, 14 FCC Rcd at 8764 ¶ 75; 47
    C.F.R. § 73.5007.

[^61]: *See Minnesota Christian Broadcasters, Inc.*, 18 FCC Rcd 614
    (2003), *aff'd sub nom*. *Carol DeLaHunt v. F.C.C.*, No. 03-1029
    (D.C. Cir. Feb. 4, 2004).

[^62]: *See* 47 C.F.R. §§ 1.2105, 73.5007, 73.5008.

[^63]: *See* *id*. § 73.5007(c).

[^64]: MMTC Comments at 2.

[^65]: Hodson suggests that we replace the bidding credits set forth in
    Section 73.5007 with (i) a 45 percent bidding credit for applicants
    with no attributable interest in any other media of mass
    communication and less than \$1 million in annual revenues, and (ii)
    a 30 percent bidding credit for applicants with attributable
    interests in five or fewer media of mass communication, none of
    which are within 250 kilometers of the allotment on which the
    applicant is bidding, if none of the facilities owned has over \$4
    million in gross annual revenue. Hodson Comments at 4.

[^66]: Van Zandt Comments at 1-2.

[^67]: MMTC Comments at 5-10.

[^68]: AHDU Comments at 1.

[^69]: Summit Media Comments at 1.

[^70]: 47 C.F.R. § 1.2105(a)(2)(x); *Order on Reconsideration of the
    Part 1 Third Report and Order*, 15 FCC Rcd at 15317, ¶ 42.

[^71]: 47 C.F.R. § 1.2105(a)(2)(xi); *Order on Reconsideration of the
    Part 1 Third Report and Order*, 15 FCC Rcd at 15317, n.142.

[^72]: 47 C.F.R. § 1.2106(a).

[^73]: Hodson Comments at 5-6.

[^74]: *Id*.

[^75]: Amendment of Part 1 of the Commission\'s Rules -- Competitive
    Bidding Procedures, *Third Report and Second Further Notice of
    Proposed Rule Making*, 13 FCC Rcd 374, 397-401, ¶¶ 38-43 (1997).

[^76]: For example, if ownership changes result in the attribution of
    new interest holders that affect the applicant's qualifications for
    a new entrant bidding credit, such information must be clearly
    stated in the bidder's amendment. *See Liberty Productions*, *supra*
    note 55, 16 FCC Rcd at 12078.

[^77]: *See Broadcast First Report and Order,* 13 FCC Rcd at 15989, ¶
    177. The temporary freeze on FM minor modification applications
    eliminates potential mutual exclusivity with applications submitted
    by FM auction applicants during the Auction No. 37 filing window.

[^78]: "Auction No. 37 Freezes Announced for FM Minor Change
    Applications and Certain Rulemaking Filings," *Public Notice*, DA
    04-1642 (rel. June 7, 2004).

[^79]: 47 C.F.R. § 1.2105(a).

[^80]: *Id*. § 73.3573(f)(4).

[^81]: In the *NCE Second Report and Order*, the Commission determined
    that short-form applicants that do not identify themselves on their
    FCC Form 175 as "noncommercial educational" will be considered as a
    matter of law, applicants for commercial broadcast stations. *NCE
    Second Report and Order*, 18 FCC Rcd at 6700 ¶ 22.

[^82]: *Id.* at 6699-6701. *See also* 47 C.F.R. § 73.5002(b).

[^83]: *NCE Second Report and Order*, 18 FCC Rcd at 6699-6701. See also
    47 C.F.R. § 73.5002(b).

[^84]: 47 C.F.R. §§ 1.2105, 73.5002(c); s*ee also* *Two Way Radio of
    Carolina, Inc.*, *Memorandum Opinion and Order*, 14 FCC Rcd 12035
    (1999) (rejecting amendment purporting to increase bidder's
    designated entity status, based on applicant's mistaken calculation
    as to its small business size).

[^85]: Letter from Margaret W. Wiener, Chief, Auctions and Industry
    Analysis Division, Wireless Telecommunications Bureau, to Patrick
    Shannon, Esq., Counsel for Lynch 3G Communications Corporation, 18
    FCC Rcd 11552 (2003).

[^86]: Amendment of Part 1 of the Commission\'s Rules \-- Competitive
    Bidding Proceeding, WT Docket No. 97-82, *Order, Memorandum Opinion
    and Order and Notice of Proposed Rule Making*, 12 FCC Rcd 5686,
    5697-5698, ¶ 16 (1997). *See also Broadcast First Report and Order,*
    13 FCC Rcd at 15967-68, ¶ 127-128.

[^87]: *Part 1 Fifth Report and Order*, 15 FCC Rcd at 15316-17, ¶¶ 40-42
    (2000); 47 C.F.R. § 1.2106(a); *see also* 47 C.F.R. §
    1.2105(a)(2)(xi).

[^88]: *Part 1 Fifth Report and Order*, 15 FCC Rcd at 15316-17, ¶¶
    40-42.

[^89]: *Auction No. 37 Comment Public Notice*, 15 FCC Rcd at 18083;
    *2004 Auction No. 37 Revised Comment Public Notice*, 19 FCC Rcd at
    6911.

[^90]: Hodson Comments at 6.

[^91]: Van Zandt Comments at 1.

[^92]: *2004* *Auction No. 37 Revised Comment Public Notice*, 19 FCC Rcd
    at 6910.

[^93]: Van Zandt Comments at 1.

[^94]: Bidders should not wait until late in a round before attempting
    to submit bids. Also, the bidding software includes an import
    function that can help facilitate bidding on a large number of
    construction permits relatively quickly.

[^95]: *Auction No. 37 Comment Public Notice*, 15 FCC Rcd at 18083;
    *2004 Auction No. 37 Revised Comment Public Notice*, 19 FCC Rcd at
    6911.

[^96]: Hodson Comments at 8.

[^97]: Van Zandt Comments at 1.

[^98]: *Auction No. 37 Comment Public Notice*, 15 FCC Rcd at 18084;
    *2004 Auction No. 37 Revised Comment Public Notice*, 19 FCC Rcd at
    6912.

[^99]: Hodson Comments at 7.

[^100]: *Auction No. 37 Comment Public Notice,* 15 FCC Rcd at 18087;
    *2004 Auction No. 37 Revised Comment Public Notice*, 19 FCC Rcd at
    6916.

[^101]: We received comments in 2000 supporting us on these issues. Wild
    West Comments at 2; Dominant at 2.

[^102]: *Auction No. 37 Comment Public Notice*, 15 FCC Rcd at 18087;
    *2004 Auction No. 37 Revised Comment Public Notice*, 19 FCC Rcd at
    6916-17.

[^103]: Hodson Comments at 8.

[^104]: Van Zandt Comments at 1.

[^105]: *Auction No. 37 Comment Public Notice*, 15 FCC Rcd at 18084;
    *2004 Auction No. 37 Revised Comment Public Notice*, 19 FCC Rcd at
    6912.

[^106]: *See* Balanced Budget Act, section 3002(a), 47 U.S.C. §
    309(j)(4)(F).

[^107]: *See* Amendment of Part 1 of the Commission\'s Rules \--
    Competitive Bidding Procedures, WT Docket No. 97-82, *Third Report
    and Order and Second Further Notice of Proposed Rule Making*, 13 FCC
    Rcd at 141, 455-456 (1998) (\"*Part 1 Third Report and Order*\").
    *See also Broadcast First Report and Order*, 13 FCC Rcd at 15971, ¶
    134. The Commission has concluded that either or both of these
    mechanisms may be employed for auctions and has delegated the
    requisite authority to make determinations regarding the
    appropriateness of employing either or both.

[^108]: *Part 1 Third Report and Order*, 13 FCC Rcd at 455-456;
    *Broadcast* *First Report and Order*, 13 FCC Rcd at 15971, ¶ 134.

[^109]: *Part 1 Third Report and Order*, 13 FCC Rcd at 455-456.

[^110]: *Auction No. 37 Comment Public Notice*, 15 FCC Rcd at 18085;
    *2004 Auction No. 37 Revised Comment Public Notice*, 19 FCC Rcd at
    6913-14.

[^111]: *See* 47 U.S.C. 309(j)(3)(C).

[^112]: *See 2004 Auction No. 37 Revised Comment Public Notice*, 19 FCC
    Rcd at 6920.

[^113]: Fitzgerald Comments at 1. Fitzgerald specifically suggests we
    reduce the minimum opening bids for allotments FM17, FM18, FM23,
    FM64, FM224, FM234, FM241, and FM262.

[^114]: *See supra* Section III.D.3.

[^115]: Commenter Richard Van Zandt also suggests we reduce the "reserve
    price" by 50 percent of the listed minimum opening bid amounts. Van
    Zandt Comments at 1. In the *2004 Auction No. 37 Revised Comment
    Public Notice*, Section III(B), we proposed to use minimum opening
    bids instead of reserve prices. Because we have not adopted reserve
    prices herein, we cannot adopt Van Zandt's suggestion.

[^116]: *Auction No. 37 Comment Public Notice*, 15 FCC Rcd at 180866;
    *2004 Auction No. 37 Revised Comment Public Notice*, 19 FCC Rcd at
    6914.

[^117]: *Auction No. 37 Comment Public Notice*, 15 FCC Rcd at 180866;
    *2004 Auction No. 37 Revised Comment Public Notice*, 19 FCC Rcd at
    6915.

[^118]: Wild West at 2.

[^119]: Bidders must have sufficient eligibility to place a bid on the
    particular construction permit. *See* Section III.D.3. ("Amount of
    Upfront Payment"), *supra*.

[^120]: *See supra* Section IV.A.2-5.

[^121]: *Id*.

[^122]: *2004 Auction No. 37 Revised Comment Public Notice* at 9.

[^123]: Bidders must have sufficient eligibility to place a bid on the
    particular construction permit. *See* Section III.D.3 "Amount of
    Upfront Payment," *supra*.

[^124]: *Auction No. 37 Comment Public Notice*, 15 FCC Rcd at 18086;
    *2004 Auction No. 37 Revised Comment Public Notice*, 19 FCC Rcd at
    6915-16.

[^125]: The Bureaus retain the discretion to lower the minimum
    acceptable bid on such construction permits in the next round or in
    later rounds.

[^126]: 47 C.F.R. §§ 1.2104(g), 1.2109.

[^127]: The payment will equal the lower of: (1) the difference between
    the net withdrawn bid and the subsequent net winning bid; or (2) the
    difference between the gross withdrawn bid and the subsequent gross
    winning bid. *See* 47 C.F.R. § 1.2104(g)(1).

[^128]: See following paragraph for discussion of interim bid withdrawal
    payments.

[^129]: *See* *Part 1 Fifth Report and Order*, 15 FCC Rcd at 15302 ¶ 15;
    47 C.F.R. § 1.2104(g)(1).

[^130]: *See Part 1 Fifth Report and Order*, 15 FCC Rcd at 15302 ¶ 15.

[^131]: 47 C.F.R. §§ 1.2107(b).

[^132]: *See* 47 C.F.R. § 73.5006.

[^133]: In cases where petitions to deny are filed, final payment public
    notices shall be promptly issued for the associated construction
    permits after the Media Bureau disposes of petitions to deny and is
    otherwise satisfied that an applicant is qualified to hold the
    construction permit. *See* 47 C.F.R. § 73.5006(d).

[^134]: 47 C.F.R. § 1.2109.

[^135]: 47 C.F.R. §1.2109(a).

[^136]: *See, e.g.*, "Auction of Licenses in the Multichannel Video
    Distribution and Data Service rescheduled for January 14, 2004,
    Notice and Filing Requirements, Minimum Opening Bids, Upfront
    Payments and Other Auction Procedures," *Public Notice,* 18 FCC Rcd
    17553 (2003); "Auction of 900 MHz Specialized Mobile Radio Service
    Licenses Scheduled for February 11, 2004, Notice and Filing
    Requirements, Minimum Opening Bids, Upfront Payments and Other
    Auction Procedures," *Public Notice,* 18 FCC Rcd 21176 (2003);
    "Auction of 24 GHz Service Licenses Scheduled for July 28, 2004,
    Notice and Filing Requirements, Minimum Opening Bids, Upfront
    Payments and Other Auction Procedures," *Public Notice*, DA 04-633
    (rel. March 12, 2004).

[^137]: *See* 47 C.F.R. §§ 1.2109(a); 73.3573(f)(5)(ii); 73.5006(d).

[^138]: *Id*. §§ 1.2112(b) and 73.5005.

[^139]: One commenter suggests that winning bidders be required to build
    their facilities and operate them for two years before they can be
    sold in order to discourage speculation. Langley Comments at 1. The
    Commission has not adopted anti-trafficking rules for broadcast
    service construction permits or licenses acquired through
    competitive bidding. Such rules are outside the scope of the
    Bureau's process for seeking comment on auction procedures.

[^140]: *See Abundant Life, Inc.*, 17 FCC Rcd 4006 (2002) ("*Abundant
    Life*"); *Winstar Broadcasting Corp.*, 17 FCC Rcd 6126 (2002);
    *Delta Radio, Inc.*, 18 FCC Rcd 16889 (2003).

[^141]: 47 C.F.R. § 1.2109(b) and (c).

[^142]: *Id*. § 1.2109(d).

[^143]: *See Broadcast First Report and Order*, 13 FCC Rcd at 15974 and
    n.153.

[^144]: *See* *id.* § 73.5007(a).

[^145]: *See* *id.* § 73.5007(b).

[^146]: *See* *Minnesota Christian Broadcasters, Inc.*, 18 FCC Rcd 614
    (2003), *aff'd sub nom*, *Carol DeLaHunt v. F.C.C.*, No. 03-1029
    (D.C. Cir. Feb. 4, 2004).

[^147]: 47 C.F.R. § 1.2105(c)(6); *see also Part 1 Seventh Report and
    Order*, 16 FCC Rcd at 17555, ¶ 17.