**DA 08-1197**

**May 23, 2008**

**CLOSED AUCTION OF LICENSES FOR CELLULAR UNSERVED SERVICE AREAS**

###### Status of Short-Form Applications to Participate in Auction 77 {#status-of-short-form-applications-to-participate-in-auction-77 .unnumbered}

**Report No. AUC-08-77-D (Auction 77)**

# STATUS OF APPLICATIONS

1.  The Wireless Telecommunications Bureau ("Bureau") has accepted for
    filing two short-form applications (FCC Forms 175) to participate in
    the upcoming closed auction of Cellular Radiotelephone Service
    licenses (Auction 77), which is scheduled to begin on Tuesday, June
    17, 2008.[^1] The following applications have been reviewed for
    completeness and compliance with the Commission's rules, and have
    been classified as incomplete or otherwise deficient:

> E.N.M.R. Telephone Cooperative
>
> Excomm, LLC[^2]

2.  Each applicant will receive overnight correspondence indicating what
    information is required to make its short-form application complete.
    These applicants may become qualified bidders only if they complete
    the following actions: (1) make the required Auction 77 upfront
    payments **by 6:00 p.m. ET on Monday, June 2, 2008**; and (2)
    resubmit their applications, having corrected the deficiencies
    indicated, **prior to 6:00 p.m. ET on Monday, June 2, 2008**.[^3]
    Applicants also must maintain the accuracy of their short-form
    applications as required by Section 1.65 of the Commission's
    rules.[^4]

3.  The filing window for resubmitting Auction 77 short-form
    applications is now open. Corrected applications must be filed
    **prior to** **6:00 p.m. ET on Monday, June 2, 2008.** This will be
    the only opportunity to cure application defects; late resubmissions
    will not be accepted. If an application is incomplete or otherwise
    deficient after the resubmission deadline has passed, the
    application will not be deemed complete and the applicant will not
    be permitted to participate in Auction 77 bidding.

## UPFRONT PAYMENTS 

4.  Upfront payments and accompanying FCC Remittance Advice forms (FCC
    Form 159) for Auction 77 are due in the proper account at Mellon
    Bank, Pittsburgh, Pennsylvania, **by 6:00 p.m. ET on Monday, June 2,
    2008.**[^5] 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.[^6] **Payments must be made by
    wire transfer only in accordance with the instructions provided in
    the *Auction 77 Procedures Public Notice*.**[^7] **No other payment
    method is acceptable for this auction.**[^8] 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.

5.  Because both applicants' applications have been classified as
    incomplete or otherwise deficient, they must submit timely and
    sufficient upfront payments before the Commission will review their
    resubmitted applications. If no upfront payment is made, or the
    application is incomplete or otherwise deficient following its
    resubmission, the applicant will not be eligible to bid in Auction
    77.

6.  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. The Bureau
    reminds applicants that they should discuss arrangements (including
    transfer times and bank closing schedules) with their financial
    institution several days before making the wire transfer so as to
    avoid untimely upfront payments. Be sure to 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 77 Procedures Public Notice* under Section II.E. and
    Section III.D.[^9]

**Note:** Applicants are reminded to submit the same FRN with all future
payments for Auction 77.

## SHORT-FORM APPLICATION CHANGES AND RESUBMISSION

7.  Each of the applicants for Auction 77 must address the defects in
    their applications during the resubmission window (which is now open
    and closes at 6:00 p.m. ET on Monday, June 2, 2008).[^10] The Bureau
    is sending a letter to each of the two applicants identifying any
    deficiencies found during the staff's initial review of the
    application. These letters are being sent via overnight delivery to
    the contact person listed on each of the two applications.

8.  During this resubmission window, applicants for Auction 77 may make
    other minor changes as described below in more detail. We remind
    applicants that Section 1.65 of the Commission's rules requires an
    applicant to maintain the accuracy and completeness of information
    furnished in its pending Auction 77 short-form application.[^11]
    Applicants should amend their short-form applications as promptly as
    possible, but no later than ten business days from the occurrence of
    a reportable change. Applicants must modify their short-form
    application electronically. Applicants seeking to report changes
    outside of those time periods in which short-form applications are
    accessible electronically must submit a letter briefly summarizing
    the changes by electronic mail to the attention of Margaret Wiener,
    Chief, Auctions and Spectrum Access Division, at the following
    address: <auction77@fcc.gov>. Questions about changes should be
    directed to Sayuri Rajapakse at (202) 418-0660.

9.  The electronic Form 175 will not permit an applicant to make certain
    modifications to its application (e.g., changes to applicant's name,
    legal classification, license selections or certifying
    official).[^12] Administrative and minor changes can be made,
    including, for example, deletion and addition of authorized bidders
    (to a maximum of three), revision of addresses and telephone numbers
    of the applicants and their contact persons, and changes to
    responsible party. In addition, changes can be made to ownership and
    agreement information.[^13] We remind applicants that any
    application changes must comply with the Commission's rules, which
    prohibit, among other things*,* changes in ownership that would
    constitute an assignment or transfer of control, as well as changes
    in ownership or disclosure of agreements that would constitute
    violations of the anti-collusion rule.[^14] If any application is
    changed to effect a major amendment, such as a change in control,
    the applicant will be ineligible to bid in the auction.

# OTHER IMPORTANT INFORMATION

10. **Qualified Bidders:** Approximately one week after the upfront
    payment deadline, following Commission review of resubmitted
    short-form applications, and correlation of payments and
    applications, a public notice listing all applicants qualified to
    bid in Auction 77 will be released. The same public notice will also
    include the start and finish time of the bidding round in Auction
    77.

11. **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
    Cellular Radiotelephone Service licenses. 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 77 in order to determine the existence of pending
    proceedings, pleadings, applications, or authorizations that might
    affect their decisions regarding participation in the auction. In
    addition, potential bidders should perform technical analyses
    sufficient to assure themselves that, should they prevail in
    competitive bidding for a specific license, 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 77 Procedures
    Public Notice* under Section I.B.4.[^15]

12. **Prohibition of Collusion:** Applicants are reminded that Section
    1.2105(c) of the Commission's rules prohibits applicants for
    licenses in any of the same geographic areas from communicating with
    each other about bids, bidding strategies, or settlements, which may
    include communications regarding the post-auction market
    structure.[^16] The anti-collusion rule applies to each of the two
    applicants that submitted short-form applications for Auction 77.
    Thus, each applicant must affirmatively avoid all communications
    with or disclosures to each other that affect or have the potential
    to affect bids or bidding strategy, which may include communications
    regarding the post-auction market structure.[^17]

13. For Auction 77**,** this prohibition became effective at the
    short-form application filing deadline on May 16, 2008, and will
    extend until the post-auction down payment deadline.[^18] **This
    prohibition applies to all applicants regardless of whether such
    applicants become qualified bidders or actually bid.**[^19] 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.[^20]

14. **Disclosure Obligations & Possible Sanctions:** We note that
    Section 1.65 requires auction applicants to maintain the accuracy
    and completeness of information furnished in their pending
    applications and to notify the Commission as promptly as possible
    and in any event within 30 days of any substantial change that may
    be of decisional significance to those applications.[^21] Thus,
    Section 1.65 requires applicants to report to the Commission
    promptly by amending their pending applications any communications
    they have made to or received from another applicant after the
    short-form filing deadline that affect or have the potential to
    affect bids or bidding strategy unless such communications are made
    to or received from parties to agreements identified under Section
    1.2105(a)(2)(viii).[^22] 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.[^23]

15. Any applicant found to have violated the anti-collusion rule may be
    subject to sanctions.[^24] 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.[^25]

16. **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.[^26]

17. **Mock Auction:** No mock auction will be held for Auction 77.
    Applicants having questions about conduct of the auction or use of
    the FCC Auction System are encouraged to contact the appropriate
    staff listed in paragraph 24 of this Public Notice.

18. **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.

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

[]{.mark}

-   Web Browser, either of the following:

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

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

-   Minimum Screen Resolution: 1024 x 768

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

# CONTACT INFORMATION

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

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

23. For technical assistance with accessing 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.

24. For further information concerning this auction proceeding, contact:

> Auctions and Spectrum Access Division, Wireless Telecommunications
> Bureau:
>
> For auction legal questions:
>
> Sayuri Rajapakse at (202) 418-0660
>
> For auction procedure, bidding and general information questions:
>
> Roy Knowles or Barbara Sibert at (717) 338-2868
>
> Mobility Division, Wireless Telecommunications Bureau:
>
> For licensing legal and service rule questions:
>
> Erin McGrath (legal) or Gabriel Ubieta (technical) at (202) 418-0620

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

**- FCC -**

[^1]: *See* "Closed Auction of Licenses for Cellular Unserved Service
    Areas Scheduled for June 17, 2008; Notice and Filing Requirements,
    Minimum Opening Bids, Upfront Payments, and Other Procedures for
    Auction 77," *Public Notice,* DA 08-926 (2008) *("Auction 77
    Procedures* *Public Notice")*.

[^2]: On April 29, 2008, Chama Wireless, LLC ("Chama") submitted an
    amendment to its long-form application (File No. 0002252327), which
    was filed in 2005, to report that Chama was merged into Excomm, LLC
    ("Excomm") in a *pro forma* transaction, effective January 1, 2007,
    and that Excomm is the surviving entity. The applicant asserts that
    the amendment qualifies as a minor change pursuant to section
    1.929(k) of the Commission's rules because both Chama and Excomm
    were wholly-owned subsidiaries of Commnet Wireless, LLC *See* 47
    C.F.R. § 1.929(k).

[^3]: *See* 47 C.F.R. §§ 1.2105(b), 1.2106.

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

[^5]: While upfront payments must be submitted to Mellon Bank pursuant
    to the instructions contained in this Public Notice, applicants are
    advised that any post-auction payments must be submitted to a
    different banking institution. Additional information on
    post-auction payments will be provided in the public notice
    announcing the close of Auction 77.

[^6]: *See* Letter from Margaret W. Wiener, Chief, Auctions and Industry
    Analysis Div., to Patrick Shannon, Esq., Counsel for Lynch 3G
    Communications Corp., 18 FCC Rcd 11,552 (WTB 2003) (finding that an
    applicant had failed to timely submit its upfront payment when the
    payment was received by the Commission's bank before the applicable
    deadline, but not credited to the Commission's account until after
    the deadline due to an error of the applicant's bank).

[^7]: *See Auction 77 Procedures Public Notice*, DA 08-926 ¶¶ 79-88. 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, the 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>.

[^8]: The Commission will not accept checks, credit cards, or automated
    clearing house ("ACH") payments.

[^9]: *See Auction 77 Procedures Public Notice* at ¶¶ 58-63, 79-88.

[^10]: 47 C.F.R. § 1.2105(b)(2).

[^11]: 47 C.F.R. § 1.65. *See also* 47 C.F.R. § 1.2105.

[^12]: 47 C.F.R. § 1.2105(b). The Commission's electronic Form 175 is
    designed to prevent inadvertent major changes by applicants.
    Therefore, applicants are not permitted to make changes to the
    following data fields at this time: applicant name, legal
    classification, certifier, and license selection.

[^13]: For more information on making administrative changes to an
    existing application, see "Updating Existing Applications." *See
    Auction 77 Procedures Public* Notice at Attachment B. During the
    resubmission phase, applicants will have electronic access to update
    the following application fields: jurisdiction of formation/country
    of citizenship, applicant address, responsible party information,
    responsible party address, contact information, contact address,
    authorized bidder information, bidding option, agreement
    information, and ownership information. During all phases of the
    application process, applicants have electronic access to make
    certain administrative changes including updates to: applicant
    address, responsible party address, contact information, contact
    address, and bidding option (telephonic or electronic).

[^14]: *See* 47 C.F.R. § 1.2105

[^15]: *See Auction 77 Procedures Public Notice* at ¶¶ 28-34.

[^16]: 47 C.F.R. §§ 1.2105(a)(2)(viii), 1.2105(c)(1). *See also*
    Amendment of Part 1 of the Commission's Rules --- Competitive
    Bidding Procedures, WT Docket No. 97-82, *Seventh Report and Order*,
    16 FCC Rcd 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).

[^17]: For a more detailed discussion of anti-collusion considerations
    in the context of Auction 77, *see* *Auction 77 Procedures Public
    Notice* at ¶¶ 8-26.

[^18]: 47 C.F.R. § 1.2105(c)(1).

[^19]: *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); Star Wireless,
    LLC and Northeast Communications of Wisconsin, Inc., *Order on
    Review*, FCC 07-80, 22 FCC Rcd 8943 (2007), *aff'd,* Star Wireless,
    LLC v. FCC, No. 07-1190, slip op. (D.C. Cir. Apr. 22, 2008); 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).

[^20]: 47 C.F.R. § 1.2105(c)(7)(i).

[^21]: 47 C.F.R. § 1.65.

[^22]: *See Part 1* *Seventh Report and Order*, 16 FCC Rcd at 17550-51 ¶
    9. Section 1.65 of the Commission's rules requires an applicant to
    maintain the accuracy and completeness of information furnished in
    its pending application and to notify the Commission within 30 days
    of any substantive change that may be of decisional significance to
    that application. 47 C.F.R. § 1.65.

[^23]: 47 C.F.R. § 1.2105(c)(6); *see also Part 1* *Seventh Report and
    Order*, 16 FCC Rcd at 17555 ¶ 17.

[^24]: *See* 47 C.F.R. §§ 1.2105(c), 1.2107(d), and 1.2109(d).

[^25]: 47 C.F.R. § 1.2109(d).

[^26]: *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.