**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Application of )

) File No. EB-02-IH-0768

**STAR WIRELESS, LLC** ) NAL/Acct. No. 200332080021

) FCC Account ID No. 0441724048

For C Block Facilities in the ) FRN No. 0007043409

710-716 and 740-746 MHz Bands )

## FORFEITURE ORDER 

**Adopted: September 21, 2004 Released: September 22, 2004**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this Forfeiture Order, issued pursuant to section 503 of the
    Communications Act of 1934, as amended (the "Act"), and section 1.80
    of the Commission's rules,[^1] we find that Star Wireless, LLC
    ("Star") engaged in collusive conduct during a Commission-conducted
    auction in 2002, in willful and repeated violation of section
    1.2105(c) of the Commission's rules.[^2] Based on the information
    before us, we conclude that Star is liable for a forfeiture in the
    amount of One Hundred Thousand Dollars (\$100,000).

    **II. BACKGROUND**

2.  This matter arises from misconduct by two auction applicants, Star
    and Northeast Communications of Wisconsin ("Northeast"), during the
    Commission's August 27-September 18, 2002, auction of 740 Lower 700
    MHz Band C and D block geographic area licenses ("Auction No. 44").
    On August 27, 2003, following a comprehensive investigation of
    possible collusive activities between Star and Northeast, the Chief,
    Enforcement Bureau ("Bureau"), issued a Notice of Apparent Liability
    for Forfeiture ("NAL"), proposing a forfeiture in the amount of
    \$100,000 against Star.[^3] The facts that formed the basis for the
    proposed forfeiture are set forth at considerable length in the NAL
    and are specifically incorporated by reference herein. The NAL found
    that Star and Northeast were both applicants for 734 of the same
    geographic license areas in Auction No. 44 and that, during the
    course of that auction, a representative of Star apparently engaged
    in prohibited communications with his counterpart at Northeast about
    bidding strategy in that auction, in apparent willful and repeated
    violation of section 1.2105(c) of the Commission's Rules.
    Specifically, the NAL found that Star had apparently violated
    section 1.2105(c) on August 28, 2002, when David G. Behenna, Star's
    authorized bidder and the President of PCSGP, Inc.,[^4] Star's
    Operating Manager, telephoned Patrick Riordan, a shareholder,
    officer, director of and authorized bidder for Northeast,[^5] to
    solicit information concerning any auction-related markets in which
    Northeast, which had not made the necessary upfront payment and,
    accordingly, could not bid, might have a business interest. The NAL
    also found that Star apparently violated section 1.2105(c) on August
    29, 2002, when Mr. Riordan returned Mr. Behenna's telephone call and
    he and Mr. Behenna discussed Northeast's interest in five Wisconsin
    markets identified by Mr. Riordan.

3.  On September 26, 2003, Star filed its response to the NAL,
    requesting rescission or reduction of the proposed forfeiture.[^6]
    In support of its position that the proposed forfeiture should be
    rescinded, Star argues that it did not violate section 1.2105(c)
    because: Northeast was not an applicant in Auction No. 44 when the
    communications in question took place;[^7] section 1.2105(c) has
    never been applied to the specific facts of this case;[^8] Star and
    Northeast never reached any agreement as a result of their
    communications;[^9] the communications at issue are beyond the scope
    of section 1.2105(c) because they were so vague that they could not
    have compromised the auction process;[^10] section 1.2105(c) was
    never intended to prohibit communications between two entities, only
    one of which is a qualified bidder;[^11] the proposed forfeiture is
    inconsistent with past applications of section 1.2105(c) and
    disproportionate to other similarly-situated cases;[^12] and
    assessment of a forfeiture in this instance will have a chilling
    effect on voluntary disclosure of potential violations in the
    future.[^13] Star also argues in the alternative that, if it did
    violate section 1.2105(c), the proposed forfeiture should be
    substantially reduced because the communications in question
    resulted in only one violation, not two.[^14]

    **III. DISCUSSION**

4.  In order to enhance and ensure the competitiveness of markets for
    communications services, the Commission adopted rules designed to
    prevent collusive conduct during auctions, facilitate the detection
    of such misconduct, and maintain public confidence in the integrity
    of the auction process. [^15] If collusive conduct were permitted
    during the auction process, the result could be the elimination of
    potential participants in auctions and competitors in the
    marketplace.[^16] Consequently, the Commission adopted section
    1.2105(c), frequently referred to as the "anti-collusion rule."
    Section 1.2105(c)(1) states, in pertinent part:

> \[A\]fter the \[FCC Form 175\] short-form application filing deadline,
> all applicants for licenses in any of the same geographic license
> areas are prohibited from cooperating or collaborating with respect
> to, discussing with each other, or disclosing to each other in any
> manner the substance of their own, or each other\'s, or any other
> competing applicant's bids or bidding strategies, or discussing or
> negotiating settlement agreements, until after the down payment
> deadline, unless such applicants are members of a bidding consortium
> or other joint bidding arrangement identified on the bidder's
> short-form application pursuant to § 1.2105(a)(2)(viii).[^17]

Thus, the prohibition against collusive communications set forth in
section 1.2105(c) takes effect on the pre-auction short-form application
deadline and remains in place until the down payment deadline, after the
close of the auction.[^18] By its very language, the prohibition
contained in section 1.2105(c) applies to all *applicants* for licenses
in a Commission auction. Moreover, the Commission and the staff have
repeatedly made clear that the prohibition against collusive contacts
and communications contained in section 1.2105(c) applies to all
entities that file short-form applications, *regardless of whether they
are qualified to bid*.[^19]

5.  Turning to the instant case, we reject Star's contention that it did
    not violate section 1.2105(c) because when it discussed its bidding
    strategy with Northeast, Northeast was not an "applicant for
    licenses."[^20] In support, Star relies on a May 24, 2002, Public
    Notice issued by the Wireless Telecommunications Bureau ("WTB")
    relating to the status of applications filed in Auction No. 44.[^21]
    Therein, WTB stated, "Applicants that have filed applications deemed
    to be incomplete, as noted in this public notice, must submit timely
    and sufficient upfront payments by the May 30, 2002 deadline . . .
    If no upfront payment is made or the application remains incomplete
    following its resubmission, the application will be dismissed."[^22]
    Star maintains that, on the basis of this language, it was
    "reasonable to conclude" that Northeast ceased being an applicant
    for licenses, subject to section 1.2105(c), when it failed to make
    its upfront payment by the May 30, 2002, deadline.[^23] Although
    Northeast's failure to timely make its upfront payment did
    disqualify it from bidding in Auction No. 44 and suggested that WTB
    would in due course dismiss its application, the fact remains that,
    as of August 28 and 29, WTB had not dismissed Northeast's
    application and it thus remained pending under the rules.

6.  Both before and after commencement of the auction, WTB issued
    multiple public notices warning auction applicants that they were
    required to comply with section 1.2105(c).[^24] Two of those public
    notices, released shortly before Mr. Behenna telephoned Mr. Riordan,
    contained a specific reminder that *all* parties that had submitted
    a short-form application to participate in Auction No. 44 \-- even
    those that were disqualified from bidding \-- remained subject to
    the anti-collusion rule until the October 4, 2002, post-auction down
    payment deadline,[^25] consistent with the definition of "applicant"
    contained in the anti-collusion rule.[^26] Thus, Northeast was
    beyond question an "applicant for licenses" for the purposes of
    section 1.2105(c) when the two companies engaged in their discussion
    -- a communication plainly prohibited by section 1.2105(c).[^27]

7.  There also is no merit to Star's claim that section 1.2105(c) has
    never been applied to the precise facts presented here.[^28] It is
    axiomatic that the facts and circumstances of two cases will never
    be identical. Star attempts, for example, to distinguish from the
    instant case the *Reardon* and *Grady* cases[^29] by pointing out
    insignificant factual differences between them and the instant
    facts. However, the legal principles discussed in that precedent are
    unquestionably on point. Collectively, these cases demonstrate that
    section 1.2105(c), by its plain language and as consistently
    interpreted by the Commission and its staff, applies to all entities
    that file short-form applications, regardless of whether they are
    ultimately disqualified from bidding in a particular auction, a fact
    of which Star and other Auction No. 44 applicants were repeatedly
    reminded by WTB in the auction public notices.

8.  Contrary to Star's claim, it is of no consequence in determining
    that there has been a violation of section 1.2105(c) whether the
    parties who engaged in a prohibited dialogue ultimately reach an
    accord.[^30] As stated in the NAL, a violation of section 1.2105(c)
    results from the mere communication between auction applicants of
    prohibited information.[^31] Similarly, we reject Star's claim that
    the communications at issue are beyond the scope of section
    1.2105(c) because they were so vague that they did not compromise
    the auction process.[^32] While we agree that the underlying purpose
    of section 1.2105(c) is to prevent auction abuses, it is the
    substance and timing of specific communications that are key in
    determining whether there has been a violation of section 1.2105(c),
    not the impact or claimed lack thereof on a particular auction.
    Thus, although we find on the basis of the information before us
    that Star indeed altered its bidding behavior as a result of its
    communication with Northeast,[^33] a fact that is probative of
    Star's noncompliance, we need not rely on that determination to
    conclude that Star violated section 1.2105(c). Star's further claim
    that section 1.2105(c) was intended to apply only to auction bidders
    rather than auction applicants[^34] is flatly belied by the plain
    language of the rule section and the numerous Auction No. 44
    releases issued by WTB. As noted *supra*, both before and after
    commencement of the auction, WTB issued multiple public notices
    warning auction applicants that they were required to comply with
    section 1.2105(c). Further, Star argues that the Commission should
    not enforce the anti-collusion rule because it was arbitrary for the
    Commission to adopt a rule that applies to an auction applicant that
    is not qualified to bid, but does not apply to an entity that never
    filed an auction application.[^35] We reject this argument as an
    untimely request for reconsideration of the 1994 rulemaking order
    which adopted the anti-collusion rule.[^36]

9.  Star's contention that its conduct in this case is substantially
    more benign than other cases that drew lesser or no sanctions also
    lacks merit.[^37] Star's reliance upon *Mercury PCS II, LLC*[^38] is
    particularly misplaced. The Commission found in *Mercury* that a
    bidder had placed trailing numbers at the end of its bids in an
    effort to surreptitiously communicate its bidding strategy to other
    participants. Although the Commission concluded that the bidder's
    conduct violated the anti-collusion rule, it declined to impose a
    sanction in that instance because the activity in question presented
    a case of first impression, and there was no prior notice that such
    specific conduct was proscribed.[^39] In contrast, as discussed
    herein and in the NAL, the Commission repeatedly provided Star and
    other auction applicants with express notice that the conduct in
    which it engaged would violate the anti-collusion rule and was
    strictly prohibited.[^40] Star's reliance on the *Commercial Realty
    St. Pete*[^41] and *U.S. West Communications, Inc.*[^42] cases also
    lacks merit. Star relies on these cases in support of its claim that
    "\[w\]here the Commission has imposed substantial forfeitures, it
    was for conduct significantly more egregious than that of Star and
    Northeast."[^43] We disagree. Because collusive activities of any
    nature may adversely affect the fundamental integrity of the
    Commission's auctions processes, we find no public interest
    justification for minimizing Star's violation of section 1.2105(c).
    Furthermore, as discussed more fully below, the Commission considers
    a number of factors in determining the amount of a forfeiture to
    ensure, among other things, that the sanction is commensurate with
    the nature of the violation and consistent with that in other
    similarly-situated cases. In the instant case, Star's misconduct was
    willful, repeated, and serious. The sanction that we impose herein
    is, on balance and relative to the cases upon which Star relies
    (which imposed significantly higher forfeitures), entirely
    appropriate. Consequently, we conclude that Star's complaint of
    disparate treatment is without merit.

10. We also find no basis for reducing the forfeiture proposed in the
    NAL. Star claims that the assessment of a \$100,000 forfeiture in
    this instance will cause future auction applicants to consider
    carefully whether to voluntarily report potentially collusive
    conduct to the Commission.[^44] The reporting of such information is
    not voluntary: section 1.2105(c)(6) requires such disclosure
    "immediately" upon a communication of bids or bidding strategies.
    Star's suggestion that the Commission should refrain from enforcing
    its auction rules for fear that such action might deter future
    compliance with this disclosure requirement is meritless. Star's
    further claim that it did not intend to violate section 1.2105(c) is
    irrelevant; the violation was willful as is defined by the Act.[^45]
    Star's representative did not accidentally telephone his counterpart
    at Northeast to solicit a conversation relating to Auction No. 44
    during the period of time when such communications were strictly
    proscribed, nor was it an accident that they engaged in a prohibited
    discussion the next day. While Star may not have set out with the
    specific intention of violating the rule, its actions were
    indisputably willful and patently inconsistent with the plain
    language of section 1.2105(c). In this regard, section 312(f)(1) of
    the Act defines willful as "the conscious and deliberate commission
    or omission of \[any\] act, irrespective of any intent to violate"
    the law.[^46] The legislative history to section 312(f)(1) of the
    Act clarifies that this definition of willful applies to both
    sections 312 and 503(b) of the Act,[^47] and the Commission has so
    interpreted the term in the section 503(b) context.[^48]

11. We also reject Star's contention that it did not repeatedly violate
    section 1.2105(c). Star claims that, even if it did violate section
    1.2105(c) on August 29, 2002, the voicemail message that its
    representative left on the telephone answering machine of
    Northeast's representative the prior day did not constitute a
    violation of the anti-collusion rule.[^49] We disagree. As we
    observed in the NAL, it is clear from the parties' subsequent
    communication that Star's Mr. Behenna contacted Northeast's Mr.
    Riordan on August 28, 2002, in order to initiate a discussion
    concerning bidding strategy. Nothing that Star has presented in its
    Response leads us to any other conclusion. Star concedes it placed
    the call to, and left a message on the answering machine of,
    Northeast's auction representative. The only logical conclusion that
    one can draw, given the subsequent conversation between the two
    representatives, is that the message involved a solicitation about a
    prohibited subject: Star's auction bidding plans.[^50] In any event,
    we conclude that even if the behavior constituted only one violation
    on August 29, 2002, a \$100,000 forfeiture is still appropriate.

12. In light of the foregoing analysis, we find that Star willfully and
    repeatedly engaged in violations of section 1.2105(c) of the
    Commission\'s Rules by discussing bidding strategy with a competing
    applicant during Auction No. 44. The first violation occurred on
    August 28, 2002, when Mr. Behenna left a voicemail message for Mr.
    Riordan, a communication that solicited Star's primary violation,
    which occurred on August 29, 2002, when the two individuals, on
    behalf of their respective companies, engaged in Mr. Behenna's
    requested conversation about bidding strategy. These telephone calls
    took place during the period of time in which discussions about such
    subjects between or among auction applicants in Auction No. 44 were
    strictly prohibited.

13. The Commission's *Forfeiture Policy Statement*[^51] specifies that
    the Commission shall impose a forfeiture based upon consideration of
    the factors enumerated in section 503(b)(2)(D) of the Act, 47 U.S.C.
    § 503(b)(2)(D), such as "the nature, circumstances, extent and
    gravity of the violation, and, with respect to the violator, the
    degree of culpability, any history of prior offenses, ability to
    pay, and such other matters as justice may require."[^52] In this
    case, taking all of these factors into consideration, we find that
    Star is liable for a forfeiture in the amount of \$100,000.

14. We also reject Star's claim that the NAL did not properly consider
    the factors set forth in section 503(b)(2)(D) of the Act.[^53] We
    carefully considered each of the factors in the NAL and have done so
    again here and find no basis for mitigating the proposed forfeiture.
    Additionally, we base the forfeiture amount in this case on the
    severity of the misconduct generally, irrespective of the number of
    violations. Given the multiple admonitions about collusion issued by
    WTB to auction applicants in Auction No. 44, Star knew or should
    have known that the communications that it solicited and in which it
    engaged were proscribed. The violations committed by Star had the
    potential to affect the fundamental integrity of Auction No. 44.
    With respect to Star's request for mitigation because it voluntarily
    disclosed the communications to the Commission,[^54] Star was
    required by section 1.2105(c)(6) of the Commission's rules to do so.
    Although Star suggests an inability to pay the forfeiture proposed
    in the NAL,[^55] it has presented no documentation in support of
    such a claim. We conclude, on balance, that the forfeiture amount is
    justified by the severity of the violations.

    **IV. ORDERING CLAUSES**

15. Accordingly, IT IS ORDERED THAT, pursuant to section 503(b) of the
    Act,[^56] and sections 0.111, 0.311 and 1.80(f)(4) of the
    Commission\'s Rules,[^57] Star IS LIABLE FOR A MONETARY FORFEITURE
    in the amount of One Hundred Thousand Dollars (\$100,000) for
    willfully and repeatedly violating section 1.2105(c) of the
    Commission\'s rules.

16. Payment of the forfeiture must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission.  The payment must include the NAL/Acct. No. and FRN No.
    referenced above.  Payment by  check or money order may be mailed to
    Forfeiture Collection Section, Finance Branch, Federal
    Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482.  Payment by overnight mail may be sent to Bank One/LB
    73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.  
    Payment by wire transfer may be made to ABA Number 071000013,
    receiving bank Bank One, and account number 1165259. 

17. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
    sent by Certified Mail Return - Receipt Requested, to: Star
    Wireless, LLC, 4000 Palos Verdes Dr. North, Suite 201, Rollings
    Hills Est., California 90274; and to its counsel: Mark J. Tauber,
    Esq., Piper Rudnick, 1200 Nineteenth Street, N.W., Washington, D.C.
    20036-3900.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.

[^2]: 47 C.F.R. § 1.2105(c).

[^3]: *In re Star Wireless, LLC*, Notice of Apparent Liability for
    Forfeiture, 18 FCC Rcd 17,648 (EB 2003) ("NAL").

[^4]: Mr. Behenna holds 100% of PCSGP's fully diluted shares of common
    stock. He is PCSGP's President, Secretary, Treasurer and sole
    Director. *See* Star FCC Form 175, Exhibit A.

[^5]: Northeast is a closely-held telecommunications holding company
    located in Green Bay, Wisconsin, owned and controlled by four
    siblings, Patrick D. Riordan, Robert H. Riordan, Micki Harper and
    Ray J. Riordan, who are each officers and directors and collectively
    hold over 52 percent of its stock.

[^6]: Letter from Paul W. Jamieson, counsel for Star, to Maureen F. Del
    Duca, Chief, Investigations and Hearings Division, Enforcement
    Bureau, Federal Communications Commission, dated September 26, 2003
    ("*Response*").

[^7]: *Id.* at 2.

[^8]: *Id.* at 3.

[^9]: *Id.* at 3-5.

[^10]: *Id.* at 5-6.

[^11]: *Id.* at 6-7.

[^12]: *Id.* at 7-9.

[^13]: *Id.* at 9-10.

[^14]: *Id.* at 10.

[^15]: *See Implementation of Section 309(j) of the Communications Act
    \-- Competitive Bidding,* Second Report and Order, 9 FCC Rcd 2348,
    2386-88, ¶¶221-226 (1994) ("Competitive Bidding Second Report and
    Order") ("\[W\]e believe that the competitiveness of the auction
    process and of post-auction market structure will be enhanced by
    certain additional safeguards designed to reinforce existing laws
    and facilitate detection of collusive conduct.").

[^16]: *See Competitive Bidding Second Report and Order*, 9 FCC Rcd
    2348, 2387, ¶223; *Implementation of Section 309(j) of the
    Communications Act \-- Competitive Bidding*, Memorandum Opinion and
    Order, 9 FCC Rcd 7684, 7687-7688, ¶10 (1994) ("Our anti-collusion
    rules are intended to protect the integrity and robustness of our
    competitive bidding process.").

[^17]: 47 C.F.R. § 1.2105(c)(1). Section 1.2105(a) requires that each
    auction applicant submit a short-form application (FCC Form 175) in
    order to participate in an auction. *See* 47 C.F.R. §1.2105(a).

[^18]: 47 C.F.R. § 1.2105(c)(1). *See also* *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 Rulemaking, 15 FCC Rcd
    15923 (2000) at 15297-98, ¶¶ 7-8.

[^19]: The public notice announcing how parties could apply to
    participate in Auction No. 44 explicitly reminded potential
    participants of the Commission\'s anti-collusion rule, that the rule
    was applicable to all applicants, and that the rule would apply from
    the deadline for filing short-form applications until the
    post-auction down payment deadline. *See* *Auction of Licenses in
    the 698-746 MHz Band Scheduled for June 19, 2002*, Public Notice, DA
    02-563 (WTB rel. March 20, 2002) ("*Procedures PN*") at 7 ("\[T\]he
    Commission's rules prohibit applicants for the same geographic
    license area from communicating with each other during the auction
    about bids, bidding strategies, or settlements. This prohibition
    begins at the short-form application filing deadline and ends at the
    down payment deadline after the auction."). The *Procedures PN*
    directed applicants to a list of precedents applying the
    anti-collusion rule, several of which explicitly applied the rule to
    applicants, such as Northeast here, that subsequently did not bid in
    the auction. *Id*. at Attachment G (citing, *inter alia*, Letter to
    Robert Pettit, Esquire, from Margaret W. Wiener, Chief, Auctions and
    Industry Analysis Division, Wireless Telecommunications Bureau,
    Federal Communications Commission, 16 FCC Rcd 10080 (WTB 2000)
    (declining to except 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); Letter to Mark Grady, President, Communications
    Venture PCS Limited Partnership, from Kathleen O\'Brien Ham, Chief,
    Auctions Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, 11 FCC Rcd 10895 (WTB 1996) ("Even when
    an applicant has withdrawn its application during the course of the
    auction, the applicant may not enter into a bidding agreement with
    another applicant bidding on the geographic license areas from which
    the first applicant withdrew.")). *See also Implementation of
    Section 309(j) of the Communications Act -- Competitive Bidding*,
    Fourth Memorandum Opinion and Order, 9 FCC Rcd 6858, 6867 ¶ 50-51
    (1994) (rejecting the argument that communications prohibited by the
    anti-collusion rule should be permitted during auctions between
    active and non-active bidders); Letter to John Reardon, Secretary to
    the Board of Directors and General Counsel, Mobex Communications,
    Inc., from Amy J. Zoslov, Chief, Auctions and Industry Analysis
    Division, Wireless Telecommunications Bureau, Federal Communications
    Commission, 13 FCC Rcd 17877 (WTB 1998) ("When the short-form filing
    deadline passes, the anti-collusion rule applies to all applicants
    with submitted short-form applications . . . We . . . remind
    applicants that submitted applications, once the short-form deadline
    passes, trigger application of the anti-collusion rule even if they
    are later withdrawn.").

[^20]: *Response* at 2.

[^21]: *See Auction of Licenses For 698-746 MHz Band; Status of FCC Form
    175 Applications to Participate in the Auction; Extension of Upfront
    Payment Deadline*, Public Notice, DA 02-1213 (WTB rel. May 24, 2002)
    ("*Status PN*")*.*

[^22]: *Status PN* at 2.

[^23]: *Response* at 2. *See also*, *Auction No. 44, Lower 700 MHz
    Auction Band Closes, Winning Bidders Announced*, Public Notice, DA
    02-2323 (WTB rel. September 20, 2002).

[^24]: *Procedures PN* at 8; *Status PN* at 4-5; *Auction of Licenses
    for 698-746 MHz Band; 128 Qualified Bidders*, Public Notice, DA
    02-1346 (WTB rel. June 7, 2002) (**"***Qualified Bidders PN")* at 7;
    *Auction No.44, Revised Qualified Bidder Notification; 125 Qualified
    Bidders*, Public Notice, DA 02-1933 (WTB rel. August 7, 2002)
    ("*Revised Qualified Bidders PN*") at 7-8; *Auction No. 44 Revised
    Schedule, License Inventory, and Procedures*, Public Notice, DA
    02-1491 (WTB rel. June 26, 2002) ("*Revised Schedule, Inventory and
    Procedures PN*") at 2.

[^25]: *Revised Schedule, Inventory and Procedures PN* at 2; *Revised
    Qualified Bidders PN* at 7.

[^26]: "The term *applicant* shall include all controlling interests in
    the entity submitting a short-form application to participate in an
    action (FCC Form 175) . . . ." 47 C.F.R. § 1.2105(c)(7)(i).

[^27]: Star also maintains that "\[o\]nce Northeast failed to perfect
    its application by meeting the contingency of making an upfront
    payment, its application was rendered void *ab initio* -- as if it
    were never filed." *Response* at 2, n. 4. This is not correct.
    Rather, as noted above, the failure to perfect the application
    rendered Northeast ineligible to bid and its application subject to
    dismissal. Nevertheless, its application remained pending at the
    time of the behavior here.

[^28]: *Response* at 3.

[^29]: *See* Letter to John Reardon, Secretary to the Board of Directors
    and General Counsel, Mobex Communications, Inc., from Amy J. Zoslov,
    Chief, Auctions and Industry Analysis Division, Wireless
    Telecommunications Bureau, Federal Communications Commission, 13 FCC
    Rcd 17877 (WTB 1998) ("When the short-form filing deadline passes,
    the anti-collusion rule applies to all applicants with submitted
    short-form applications. . . We . . . remind applicants that
    submitted applications, once the short-form deadline passes, trigger
    application of the anti-collusion rule even if they are later
    withdrawn."); Letter to Mark Grady, President, Communications
    Venture PCS Limited Partnership, from Kathleen O\'Brien Ham, Chief,
    Auctions Division, Wireless Telecommunications Bureau, Federal
    Communications Commission, 11 FCC Rcd 10895 (WTB 1996) ("Even when
    an applicant has withdrawn its application during the course of the
    auction, the applicant may not enter into a bidding agreement with
    another applicant bidding on the geographic license areas from which
    the first applicant withdrew.").

[^30]: *Response* at 3-5.

[^31]: NAL, para. 19.

[^32]: *Response* at 6-7. In fact, as concluded in the NAL, the parties
    did compromise the auction by providing Star with information to
    which other bidders lacked access. NAL, para. 20.

[^33]: The Commission's bidding records reveal that, after the August
    29, 2002, conversation between Star's Behenna and Northeast's
    Riordan, Star began to bid actively and aggressively for Wisconsin
    and Iowa markets \-- areas for which Star had shown no interest in
    its earlier bidding and in which Star, unlike Northeast, had no
    operations. Thus, the parties' denials notwithstanding, the evidence
    shows that the subject communication significantly impacted Star's
    auction bidding strategy. *See* NAL, paras. 14, 15, 19, note 60.

[^34]: *Response* at 4-5.

[^35]: *Response* at 6.

[^36]: *Competitive Bidding Second Report and Order*, 9 FCC Rcd at 2,386
    -- 88 ¶¶ 221 -- 226.

[^37]: *Response* at 7-9.

[^38]: *See In re Mercury PCS II, LLC*, 13 FCC Rcd. 23,755 (1998)
    ("*Mercury*").

[^39]: *Id.* at 23,759.

[^40]: *See supra*, note 24.

[^41]: *See In the Matter of Commercial Realty St. Pete*, 11 FCC Rcd
    15,374 (1996) ("*Commercial Realty*"). In that case, the Commission
    found that Commercial Realty had violated the Commission's
    anti-collusion rule by attempting to discourage other bidders from
    making down payments; that it had abused the Commission's processes
    by improperly claiming bidding credits as a woman-owned business,
    and that it willfully misrepresented that it was qualified to incur
    financial obligations exceeding \$40,000,000. As a result of its
    misconduct, the Commission imposed a \$390,000 forfeiture against
    Commercial Realty.

[^42]: *See In re U.S. West Communications, Inc.,* 13 FCC Rcd 8286
    (1998) ("*US West*"). In that case, US West, an auction participant,
    disclosed and discussed its bidding strategy to, and cooperated
    with, a competing auction participant during the auction, and failed
    to timely notify the Commission of the prohibited disclosure,
    discussion and arrangement. As a consequence, the Commission imposed
    a \$1,200,000 forfeiture against US West for its violations of
    sections 1.2105(c) and 1.65 of the Commission's rules.

[^43]: *Response* at 7.

[^44]: *Response* at 9-10.

[^45]: *Id.* at 8.

[^46]: 47 U.S.C. § 312(f)(1).

[^47]: H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).

[^48]: *See, e.g.,* *Application for Review of Southern California
    Broadcasting Co.*, Memorandum Opinion and Order, 6 FCC Rcd 4387,
    4388 (1991).

[^49]: *Id.* at 10.

[^50]: As described in the NAL, from the auction-related communications
    that occurred between Mr. Behenna and Mr. Riordan, Star learned of
    Northeast\'s interest in certain markets and thus knew about
    potential post-auction demand for the licenses in certain markets in
    Auction No. 44, and Northeast had an opportunity to influence
    Star\'s auction plan and strategy for its own purposes. NAL, 18 FCC
    Rcd at 17,657. *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 374, 468 (1997) (\"\[A\]uction applicants should avoid
    all discussions with each other that will likely affect bids or
    bidding strategy . . . .\").

[^51]: *The Commission's Forfeiture Policy Statement and Amendment of
    section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*,
    12 FCC Rcd 17087, 17113 (1997), *recon. denied* 15 FCC Rcd 303
    (1999) ("*Forfeiture Policy Statement"*); 47 C.F.R. § 1.80(b).

[^52]: *Forfeiture Policy Statement*, 12 FCC Rcd at 17100-01, ¶ 27.

[^53]: *Response* at 8-9.

[^54]: *Id.* at 8. []{.mark}

[^55]: *Id.* at 9.

[^56]: 47 U.S.C. § 503(b).

[^57]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).