**DA 07-190**

**January 26, 2007**

**AUCTION OF FM BROADCAST**

**CONSTRUCTION PERMITS**

###### Status of Short-Form Applications to Participate in Auction No. 70 {#status-of-short-form-applications-to-participate-in-auction-no.-70 .unnumbered}

**Report No. AUC-07-70-D (Auction No. 70)**

The Media and the Wireless Telecommunications Bureaus (collectively the
"Bureaus") of the Federal Communications Commission ("Commission") have
received 181 short-form applications (FCC Forms 175) to participate in
the upcoming auction of 120 FM broadcast construction permits (Auction
No. 70) scheduled to begin on Wednesday, March 7, 2007.[^1] The
applications have been reviewed for completeness and compliance with the
Commission's rules, and have been classified into the categories listed
below.

**[Application Categories]{.underline}:**

**ACCEPTED FOR FILING 128 applications**

**INCOMPLETE 47 applications**

**REJECTED 6 applications**

**Accepted:** Applications accepted for filing are listed alphabetically
in Attachment A. **These applicants will become qualified bidders upon
receipt of the required upfront payment due prior to 6:00 p.m. Eastern
Time (ET) on Monday, February 5, 2007.**[^2] With respect to the
short-form application, these applicants need take no further action
except as may be necessary to maintain the accuracy and acceptability of
their applications.[^3] Attachment A also indicates the construction
permits selected by each applicant on its short-form application. If the
accepted applicant claimed a New Entrant Bidding Credit,[^4] the
applicant's bidding percentage for each construction permit is indicated
as 35 percent or 25 percent.[^5]

**Incomplete:** Applications found to be incomplete or deficient are
listed alphabetically in Attachment B. Those applicants will receive
overnight correspondence indicating what information is required to make
their applications acceptable for filing. These applicants may become
qualified bidders only if they complete the following actions: (1) make
the required upfront payments prior to **6:00 p.m. ET on Monday,
February 5, 2007**; and (2) resubmit their applications**,** having
corrected the deficiencies indicated, prior to **6:00 p.m. ET on Monday,
February 5, 2007**.[^6] Applicants also must maintain the accuracy of
their short-form applications as required by the Commission's rules.[^7]

The filing window for resubmitting short-form applications is now open.
Corrected applications must be filed prior to **6:00 p.m. ET on Monday,
February 5, 2007.** This will be the only opportunity to cure specified
application defects; late resubmissions will not be accepted. In
addition, if an application remains incomplete or otherwise deficient
after the resubmission deadline has passed, the application will not be
accepted and the applicant will not be permitted to participate in the
bidding.

**Rejected:** Applications classified as rejected are listed
alphabetically in Attachment C. Applicants whose applications have been
classified as rejected are disqualified from participation in Auction
No. 70. In Auction No. 70, rejected short-form applications include
applications in which the applicant has checked "yes" to the
Noncommercial Educational election question on the FCC Form 175. The
Commission concluded in the *Second Report and Order* in *Reexamination
of the Comparative Standard for Noncommercial Educational Applicants*
that any application for a noncommercial educational ("NCE") station
that is mutually exclusive with any application for a commercial
broadcast station will be returned as unacceptable for filing.[^8] The
applications for NCE FM broadcast stations identified in Attachment C
are mutually exclusive with applications for FM commercial broadcast
stations, and therefore are excluded from further Auction No. 70
participation.

### UPFRONT PAYMENT DEADLINE

Upfront payments and accompanying FCC Remittance Advice forms (FCC Form
159) for Auction No. 70 are due in the proper account at Mellon Bank,
Pittsburgh, Pennsylvania, prior to **6:00 p.m. ET on Monday, February 5,
2007.** In order to meet the Commission's upfront payment deadline, an
applicant's payment must be credited to the Commission's account by the
deadline.[^9] Payments must be made by wire transfer in accordance with
the instructions provided in the *Auction No. 70 Procedures Public
Notice*.[^10] No other payment method is acceptable for this
auction.[^11] Applicants are reminded to provide their FCC Registration
Number ("FRN") on the FCC Form 159. At least one hour before placing the
order for the wire transfer (but on the same business day), applicants
must send by facsimile a completed FCC Form 159 (revised February 2003)
to Mellon Bank at (412) 209-6045.

Applicants that have filed applications deemed to be incomplete or
deficient, as noted in Attachment B to this public notice, must submit
timely and sufficient upfront payments before the Commission will review
their resubmitted applications. If no upfront payment is made, or the
application remains incomplete or deficient following its resubmission,
the applicant will not be eligible to bid. When the applicant has
provided its FRN [and]{.underline} wire transfer instructions from the
payor of record, if eligible for refund, any upfront payment made will
be refunded in a timely manner upon request.

**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.** We remind applicants
that to avoid untimely upfront payments they should discuss arrangements
(including transfer times and bank closing schedules) with their
financial institution several days before making the wire transfer, and
allow sufficient time for the transfer to be initiated and completed
before the deadline. Detailed information regarding upfront payments,
including additional requirements for "former defaulters," can be found
in the *Auction No. 70 Procedures Public Notice* under Section II.F and
Section III.D.[^12]

**Note:** Applicants are reminded to submit the same FRN with all future
payments for Auction No. 70.

### OTHER IMPORTANT INFORMATION

**Qualified Bidders:** Approximately three weeks after the upfront
payment deadline, following Commission review of resubmitted short-form
applications, and correlation of payments and applications, a public
notice listing all applicants qualified to bid in the auction will be
released (*Qualified Bidders Public Notice*). The same public notice
will also include bidding schedules for both the mock auction and the
first day of bidding in Auction No. 70.

**Due Diligence:** Potential bidders are reminded that they are solely
responsible for investigating and evaluating all technical and
marketplace factors that may have a bearing on the value of the
broadcast construction permits being offered in this auction. The
Commission makes no representations or warranties about the use of this
spectrum for particular services. Potential bidders are strongly
encouraged to conduct their own research prior to the beginning of
bidding in Auction No. 70 in order to determine the existence of pending
proceedings, pleadings, applications, or authorizations that might
affect their decisions regarding participation in the auction. Potential
bidders also should 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.[^13] Participants
in Auction No. 70 are strongly encouraged to continue such research
during the auction. In addition, potential bidders should perform
technical analyses sufficient to assure themselves that, should they
prevail in competitive bidding for a specific construction permit, they
will be able to build and operate facilities that will comply fully with
the Commission\'s technical and legal requirements. For further details
regarding due diligence, please refer to the *Auction No. 70 Procedures
Public Notice* under Section I.B.3.[^14]

**Prohibition of Collusion:** Applicants are reminded that Sections
1.2105(c) and 73.5002(d) of the Commission's rules prohibit applicants
for any of the same geographic license areas from communicating with
each other about bids, bidding strategies, or settlements, which may
include communications regarding the post-auction market structure,
unless they have identified each other on their short-form applications
as parties with which they have entered into agreements under Section
1.2105(a)(2)(viii).[^15] For Auction No. 70, this prohibition became
effective at the short-form application filing deadline on December 19,
2006, and will end at the post-auction down payment deadline, which will
be announced in a future public notice.[^16] **This prohibition applies
to all applicants regardless of whether such applicants become qualified
bidders or actually bid.**[^17] For purposes of this prohibition,
Section 1.2105(c)(7)(i) defines "applicant" as including all officers
and directors of the entity submitting a short-form application to
participate in the auction, all controlling interests of that entity, 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.[^18] We note that a violation of the
anti-collusion rule could occur when an individual serves as an officer
and/or director for two or more competing applicants.[^19]

If parties had agreed in principle on all material terms of a bidding
agreement(s), those parties must have been identified on the short-form
application under Section 1.2105(c), even if the agreement had not been
reduced to writing. If parties had not agreed in principle by the
short-form application filing deadline on December 19, 2006, an
applicant should not have included the names of those parties on its
application, and must not have continued negotiations.[^20]

Bidders competing for the same construction permits must not communicate
directly or indirectly about bids or bidding strategy.[^21] The Bureaus
have encouraged applicants competing for construction permits in any of
the same designated markets 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.[^22] Also, if the authorized bidders are
different individuals employed by the same organization (*e.g*., law
firm or consulting firm), a violation could likewise occur. In such a
case, at a minimum, applicants should take precautionary steps to
prevent communication between authorized bidders and that applicants and
their bidding agents will comply with the anti‑collusion rule.[^23]
However, the Bureaus caution that the mere existence of precautionary
measures will not outweigh specific evidence that collusive behavior has
occurred, nor will it preclude the initiation of an investigation when
warranted.[^24]

In addition, Section 1.65 of the Commission's rules requires an
applicant to **maintain** the accuracy and completeness of information
furnished in its pending application and to notify the Commission within
30 days of any substantive change that may be of decisional significance
to that application.[^25] Thus, Section 1.65 requires auction applicants
that engage in communication of bids or bidding strategies that results
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. Applicants are reminded that any
change affecting eligibility for the new entrant bidding credit, insofar
as it results in the diminishment or loss of the new entrant bidding
credit claimed on the short-form application, must be reported
immediately. 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.[^26]

Applicants that are winning bidders will be required to disclose in
their long-form applications the specific terms, conditions, and parties
involved in all bidding consortia, joint ventures, partnerships, or
other agreements or arrangements entered into relating to the
competitive bidding process.[^27] Any applicant found to have violated
the anti-collusion rule may be subject to sanctions.[^28] In addition,
applicants are reminded that they are subject to the antitrust laws,
which are designed to prevent anti-competitive behavior in the
marketplace. If an applicant is found to have violated the antitrust
laws in connection with its participation in the competitive bidding
process, it may be subject to forfeiture of its upfront payment, down
payment, or full bid amount, and may be prohibited from participating in
future auctions.[^29]

**Ex Parte Rule:** Applicants should also be aware that the Commission
has generally exempted auction proceedings from the strict requirements
of the ex parte rule found in Section 1.1208 of the Commission's
rules.[^30]

**Mock Auction:** All applicants found to be qualified bidders will be
eligible to participate in a mock auction on Monday, March 5, 2007. We
encourage all qualified bidders to take advantage of this opportunity to
become familiar with the FCC's Integrated Spectrum Auction System
("ISAS" or "FCC Auction System").[^31] In the public notice announcing
the qualified bidders, the Bureaus will announce the bidding schedule
for the mock auction. The mock auction will be conducted over the
Internet, and telephonic bidding will be available as well.

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

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

[]{.mark}

-   Web Browser, either of the following:

```{=html}
<!-- -->
```
-   Microsoft® Internet Explorer 6.0 or higher (recommended). Your
    browser must have installed either Microsoft VM or Java Plug-In
    Version 1.4.2_05.

-   Netscape® Communicator™ 6.0 or higher, with Java Plug-In Version
    1.4.2_05 installed.

> **Other browsers are not supported.**
>
> Java Plug-In Version 1.4.2_05 is available for downloading at
> [***http://java.sun.com/products/archive/j2se/1.4.2_05/index.html***](http://java.sun.com/products/archive/j2se/1.4.2_05/index.html)
> (choose the JRE version).

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

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

**Long-Form Applications:** All applicants should be aware that at the
long-form application stage, they will be subject to the more extensive
reporting requirements contained in the Commission's Part 1 and Part 73
ownership disclosure rules.[^32]

**CONTACT INFORMATION**

For questions about payment or instructions for wiring upfront payments,
contact Gail Glasser, Auctions Accounting Group, at (202) 418-0578.

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

For technical assistance with using the FCC Auction System, contact the
FCC Technical Support Hotline at (877) 480-3201, option nine; (202)
414‑1250; or (202) 414-1255 (TTY). The FCC Technical Support Hotline is
generally available Monday through Friday from 8:00 a.m. to 6:00 p.m.
ET. All calls to the FCC Technical Support Hotline are recorded.

For further information concerning this auction proceeding, contact:

Auctions and Spectrum Access Division, Wireless Telecommunications
Bureau:

For legal questions: Lynne Milne at (202) 418-0660

For bidding and auction procedures questions: Jeff Crooks at (202)
418-0660

For bidding and general filing status questions: Linda Sanderson at
(717) 338-2868

Audio Division, Media Bureau:

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

**- FCC -**

[^1]: *See* "Auction of FM Broadcast Construction Permits Scheduled for
    March 7, 2007, Notice and Filing Requirements, Minimum Opening Bids,
    Upfront Payments and Other Procedures for Auction No. 70," AU
    06-170, *Public Notice,* 21 FCC Rcd 12957 (MB/WTB 2006) ("*Auction
    No. 70 Procedures Public Notice*\"). A summary of this public notice
    appears at 71 Fed. Reg. 68613 (Nov. 27, 2006). *See also* Removal of
    FM Broadcast Construction Permit from Auction No. 70, AU 06-170,
    *Public Notice*, DA 06-2466, 2006 WL 3511984 (F.C.C.) (WTB/MB Dec.
    5, 2006).

[^2]: *See* 47 C.F.R. § 1.2106.

[^3]: *See* 47 C.F.R. § 1.65 (an applicant must maintain the accuracy
    and completeness of information furnished in its pending application
    and notify the Commission within 30 days of any substantial change
    to that application that may be of decisional significance), 47
    C.F.R. § 1.2105(c)(6) (any applicant that makes or receives a
    prohibited communication must report such communication in writing
    to the Commission no later than five business days after the
    communication occurs).

[^4]: The new entrant bidding credit is not available to an applicant if
    it, and/or any individual or entity with an attributable interest in
    the applicant, has an attributable interest in more than three media
    of mass communications, or in any existing media of mass
    communications in the "same area" as the broadcast facility proposed
    in this auction. 47 C.F.R. § 73.5007. *See* 47 C.F.R. §
    73.5007(b)(1)-(3) for the specific service definitions of "same
    area."

[^5]: As indicated in Attachment A to this Public Notice, one applicant,
    Scott M. Knoblauch, requested a waiver of Commission rules in his
    application. This waiver request remains pending at this time and
    will be addressed separately. Indication of such application as
    "accepted" in this public notice does not constitute a determination
    of the outcome of the waiver request. In the event that an applicant
    is found unqualified to be a Commission licensee or ineligible for
    claimed designated entity benefits, it will be liable for any
    obligations incurred as a result of its participation in the
    auction. *See generally* 47 C.F.R. § 1.2109.

[^6]: *See* 47 C.F.R. §§ 1.2105(b), 1.2106.

[^7]: *See* 47 C.F.R. §§ 1.65, 1.2105(c)(6).

[^8]: Reexamination of the Comparative Standard for Noncommercial
    Educational Applicants, MM Docket No. 95-31, *Second Report and
    Order*, 18 FCC Rcd 6691, 6700 (2003), recons. pending. This
    procedure has been codified at 47 C.F.R. § 73.5002(b).

[^9]: *See* Letter from Margaret W. Wiener, Chief, Auctions and Industry
    Analysis Div., to Patrick Shannon, Esq., Counsel for Lynch 3G
    Communications Corp., 18 FCC Rcd 11552 (Auc. Div. WTB 2003).

[^10]: *See Auction No. 70 Procedures Public Notice*, 21 FCC Rcd at
    12981-82 ¶¶ 88-92. A wire transfer is a transaction that you
    initiate through your bank. It authorizes your bank to wire funds
    from your account to our lockbox bank, Mellon Bank in Pittsburgh,
    Pennsylvania. Additional information on wire transfers is available
    on the Commission's web site at:
    <http://www.fcc.gov/fees/wiretran.html>.

[^11]: The Commission will not accept checks, credit cards, or Automated
    Clearing House (ACH) payments.

[^12]: *See Auction No. 70 Procedures Public Notice*, 21 FCC Rcd at
    12976-78 ¶¶ 64-69, 12981-84 ¶¶ 88-98.

[^13]: *See* 47 C.F.R. § 73.202.

[^14]: *See Auction No. 70 Procedures Public Notice*, 21 FCC Rcd at
    12964-66 ¶¶ 15-25.

[^15]: 47 C.F.R. §§ 1.2105(a)(2)(viii), 1.2105(c)(1), 73.5002(d). *See
    also* Amendment of Part 1 of the Commission's Rules --- Competitive
    Bidding Procedures, WT Docket No. 97-82, *Seventh Report and Order*,
    16 FCC Rcd 17546 (2001) ("*Part 1 Seventh Report and Order*");
    *id.,* *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, 15297-98 ¶¶ 7-8 (2000).

[^16]: 47 C.F.R. § 1.2105(c)(1).

[^17]: *See, e.g.,* Northeast Communications of Wisconsin, LLC,
    *Forfeiture Order*, 19 FCC Rcd 18635 (EB 2004) (imposing forfeiture
    in the amount of \$100,000 for violation of the anti-collusion rule,
    even though the applicant never made an upfront payment for the
    auction and was not listed as a qualified bidder); Letter to Robert
    Pettit, Esq., from Margaret W. Wiener, Chief, Auctions and Industry
    Analysis Div., 16 FCC Rcd 10080 (WTB 2000) (declining to exempt an
    applicant's controlling interest from coverage by the anti-collusion
    rule, even though the applicant never made an upfront payment for
    the auction and was not listed as a qualified bidder).

[^18]: 47 C.F.R. § 1.2105(c)(7)(i).

[^19]: *See* Letter to Colby M. May from Barbara A. Kreisman and
    Margaret W. Wiener, 20 FCC Rcd 14648 (MB/WTB 2005) (finding apparent
    violation of anti-collusion rule where applicants with mutually
    exclusive applications reported sharing same individual as an
    officer and director and reported no bidding agreement).

[^20]: *See* Wireless Telecommunications Bureau Clarifies Spectrum
    Auction Anti-Collusion Rules, *Public Notice*, 11 FCC Rcd 9645 (WTB
    1995).

[^21]: *Part 1 Seventh Report and Order*, 16 FCC Rcd at 17540-50 ¶ 6.

[^22]: *See Auction No. 70 Procedures Public Notice*, 21 FCC Rcd at
    12961-64 ¶¶ 6-14.

[^23]: *See* Application of Nevada Wireless for a License to Provide 800
    MHz Specialized Mobile Radio Service in the Farmington, NM-CO
    Economic Area (EA-155) Frequency Band A, *Memorandum Opinion and
    Order*, 13 FCC Rcd 11973, 11977 ¶ 11 (1998).

[^24]: *Id*., 13 FCC Rcd at 11978 ¶ 13.

[^25]: 47 C.F.R. § 1.65. *See also* *Auction No. 70 Procedures Public
    Notice*, 21 FCC Rcd at 12963-64 ¶¶ 12-14.

[^26]: 47 C.F.R. § 1.2105(c)(6); *see also Part 1* *Seventh Report and
    Order*, 16 FCC Rcd at 17555 ¶ 17.

[^27]: 47 C.F.R. § 1.2107(d).

[^28]: *See* 47 C.F.R. §§ 1.2105(c), 1.2107(d), and 1.2109(d).

[^29]: 47 C.F.R. § 1.2109(d).

[^30]: *See* 47 C.F.R. § 1.1208. *See also* "Commission Announces that
    Mutually Exclusive 'Short-Form' Applications (Form 175) to
    Participate in Competitive Bidding Process ('Auctions') Are Treated
    as Exempt for *Ex Parte* Purposes," *Public Notice*, 9 FCC Rcd 6760
    (1994). *See also* 47 C.F.R. § 1.1202(d)(1) Note 1.

[^31]: For additional information regarding the FCC's Integrated
    Spectrum Auction System, including sample screen shots, visit the
    "About ISAS" web page at
    [http://wireless.fcc.gov/auctions/about_isas](http://wireless.fcc.gov/auctions/default.htm?job=about_isas).

[^32]: *See* 47 C.F.R. §§ 1.2107(d), 1.2112(b)(2), 73.5005. *See also*
    Instructions for Form 301, Application for Construction Permit for
    Commercial Broadcast Station, Instructions for Section II: Legal
    Information, paragraph G: Item 10: Auction Authorization, for
    auction-related exhibit filing requirements.