**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Application of )

) File No. EB-02-IH-0768

**NORTHEAST COMMUNICATIONS OF** ) NAL/Acct. No. 200332080022

**WISCONSIN, INC.** ) FCC Account ID No. 0442010372

) FRN No. 0002706190

For C Block Facilities in the )

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 Northeast Communications
    of Wisconsin, Inc. ("Northeast") engaged in collusive conduct during
    a Commission-conducted auction in 2002, in willful violation of
    section 1.2105(c) of the Commission's rules.[^2] Based on the
    information before us, we conclude that Northeast is liable for a
    forfeiture in the amount of One Hundred Thousand Dollars
    (\$100,000).

    **II. BACKGROUND**

2.  This matter arises from misconduct by Northeast and Star Wireless,
    LLC ("Star"), both applicants in 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 Northeast and Star, the Chief, Enforcement Bureau
    ("Bureau"), issued a Notice of Apparent Liability for Forfeiture
    ("NAL"), proposing a forfeiture in the amount of \$100,000 against
    Northeast.[^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
    Northeast and Star 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 Northeast apparently
    engaged in prohibited communications with his counterpart at Star
    about bidding strategy in that auction, in apparent willful
    violation of section 1.2105(c) of the rules. Specifically, the NAL
    found that Northeast had apparently violated section 1.2105(c) on
    August 29, 2002, when Patrick Riordan, a shareholder, officer,
    director of and authorized bidder for Northeast,[^4] spoke by
    telephone with David G. Behenna, Star's authorized bidder and the
    President of PCSGP, Inc., Star's operating manager.[^5] During their
    conversation, Mr. Riordan identified and discussed with Mr. Behenna
    the interest of Northeast, which had not made the necessary upfront
    payment and, accordingly, could not bid, in five Wisconsin markets
    for which licenses were to be auctioned in Auction No. 44.[^6]

3.  On September 26, 2003, Northeast filed its response to the NAL,
    requesting rescission or reduction of the proposed forfeiture.[^7]
    Northeast argues that it did not violate section 1.2105(c) because:
    it was not an applicant in Auction No. 44 when the communications in
    question took place and, thus, was not subject to the anti-collusion
    rule;[^8] its communication with Star did not result in the harm
    against which the rules were designed to protect;[^9] section
    1.2105(c), as interpreted in the NAL, is not sufficiently clear to
    be enforced;[^10] the interpretation in the NAL of the
    anti-collusion rule is overly broad and not binding on
    Northeast;[^11] such interpretation would, if accurate, cause the
    rule to be unconstitutional;[^12] the NAL is at odds with prior
    Commission determinations;[^13] Northeast's communication with Star
    conveyed less information than communications expressly permitted by
    the rules;[^14] and enforcement of the rule under the unique
    circumstances presented in Auction 44 would frustrate the intent of
    the rule.[^15] In addition, Northeast claims that section 1.2105(c)
    and the NAL are invalid because there was no valid display of an
    Office of Management and Budget control number.[^16] In support of
    its position, Northeast also argues in the alternative that the
    proposed forfeiture amount should be reduced because its violation
    of the rule was unintentional.

    **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.[^17] 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.[^18] 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).[^19]

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 effect until the post-auction down payment
deadline.[^20] 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*.[^21]

5.  Turning to the instant case, we reject Northeast's claim that it did
    not violate section 1.2105(c) because it was not an applicant in
    Auction No. 44 on August 29, 2002, when the communication at issue
    took place.[^22] Northeast maintains that it ceased being an
    "applicant," 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 disqualified
    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).

7.  There also is no merit to Northeast's contention that, because the
    communication in question did not result in harm to the auctions
    process, Northeast cannot be found to have violated section
    1.2105(c).[^27] While it is accurate to say 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,[^28] and that the communication
    disadvantaged other auction participants by providing Star with
    information that the others lacked,[^29] we need not rely on that
    determination to conclude that Northeast violated section
    1.2105(c).[^30]

8.  Northeast next makes the bare assertion that section 1.2105(c) is so
    lacking in specificity "that any attempt at enforcement of the rule
    in this particular instance would violate . . . fundamental due
    process . . . ."[^31] However, Northeast does not articulate in what
    manner the rule is vague. In fact, the rule prohibits certain,
    specific, and carefully defined conduct, with temporal limitations,
    of which Northeast was or should have been aware, and it explicitly
    applies to a narrow class of entities (*i.e.*, "applicants") of
    which Northeast unquestionably was, and during all relevant times
    remained, a member. Northeast also claims that the Commission failed
    to provide due notice as to whom section 1.2105(c) applies because
    the rule section does not distinguish between applicants that
    actually participate in bidding and those, like Northeast, that have
    been disqualified from doing so.[^32] Section 1.2105(c) does not
    make any distinction between "bidder/applicants" and
    "non-bidder/applicants" because the prohibition on collusive conduct
    applies to *all* applicants for licenses, regardless of whether they
    are qualified to bid. Given the plain language of section 1.2105(c)
    and the plethora of information that was provided to applicants in
    Auction No. 44,[^33] Northeast had sufficient notice regarding the
    entities to which section 1.2105(c) applied.

9.  We also reject Northeast's claim that it should not be bound by the
    interpretation of section 1.2105(c) contained in the NAL because the
    staff expanded the rule to include applicants that have been
    disqualified from bidding without having first provided notice and
    comment in the form of a rulemaking proceeding.[^34] The NAL did
    nothing more than apply the rule's definition of the word
    "applicant" to Northeast. In this regard, Northeast filed an
    application to participate in Auction No. 44, and despite the fact
    that it ultimately did not participate in the bidding and its
    application was subject to dismissal, it remained at all relevant
    times an "applicant" therein. Contrary to Northeast's claim, the
    Bureau did not rewrite, expand, or otherwise modify section
    1.2105(c) when it concluded in the NAL that Northeast was an
    "applicant" subject to the prohibitions encompassed by that rule.

10. There also is no merit to Northeast's further contention that
    section 1.2105(c), as interpreted in the NAL, is
    unconstitutional.[^35] The First Amendment[^36] does not prohibit
    all regulation of protected speech. "\[G\]overnment regulation is
    sufficiently justified if it is within the constitutional power of
    the government; if it furthers an important or substantial
    governmental interest; if the governmental interest is unrelated to
    the suppression of free expression; and if the incidental
    restriction on alleged First Amendment freedoms is no greater than
    is essential to the furtherance of that interest."[^37] A
    restriction that regulates the time, place, or manner of speech may
    be imposed so long as it is reasonable.[^38] Such regulations, when
    narrowly tailored to further an important governmental interest, may
    be regarded as content-neutral as long as the restriction imposed is
    not substantially broader than necessary to achieve the
    government\'s interest.[^39] The requirement to narrowly tailor
    speech-related regulation is satisfied "so long as the . . .
    regulation promotes a substantial government interest that would be
    achieved less effectively absent the regulation."[^40] In the
    instant case, the Commission has a legitimate and substantial
    interest in assuring the integrity of its auctions. Section
    1.2105(c) furthers that interest by proscribing certain
    communications during a specific period of time between and among
    members of a limited class of persons and entities that voluntarily
    file applications to participate in an FCC auction. Because the
    Commission's anti-collusion rule is narrowly tailored to achieve a
    permissible governmental objective, it is, unlike the restrictions
    that were the subject of the cases cited by Northeast,[^41]
    constitutionally sound.

11. Northeast\'s reliance on *Western PCS BTA 1 Corporation*[^42] in
    support of its argument that the NAL\'s interpretation of section
    1.2105(c) is inconsistent with Commission precedent also lacks
    merit.[^43] In *Western*, the Commission clarified that section
    1.2105(c) prohibits not only a communication of an applicant\'s own
    bids or bidding strategy, but also a communication of another
    applicant\'s bids or bidding strategy.[^44] As previously stated,
    there is no lack of clarity with regard to the applicability of
    section 1.2105(c) to Northeast as an applicant in Auction No. 44.
    Therefore, Northeast\'s attempt to claim that *Western* is a
    relevant precedent is unavailing. Northeast knew or should have
    known that any communications with Star during the restricted period
    about either one or both of their bidding strategies would be
    patently inconsistent with the letter and spirit of section
    1.2105(c).

12. We also reject Northeast\'s assertion that the NAL imposed an
    \"overly-broad\" interpretation of the anti-collusion rule because
    certain communications prior to the short-form filing deadline are
    not prohibited.[^45] Significantly, the application of the rule to
    Northeast is based not on an interpretation of the rule, but on the
    plain language of the rule. In addition, we reject Northeast\'s
    argument that its private communication of bidding strategy with one
    other applicant should be permissible because at the end of each
    bidding round during the auction the Commission makes available to
    all participants the bids submitted for that round. Northeast\'s
    attempt to revise the language of the rule is unavailing because it
    is tantamount to an untimely request for reconsideration of the 1994
    rulemaking order which adopted the anti-collusion rule.[^46]

13. Northeast also contends that section 1.2105(c) is inapplicable to
    applicants in Auction No. 44 because the auction was "unique" in
    that bidding was delayed until after the auction process commenced
    and a new upfront payment date was established after the short-form
    applications were filed.[^47] According to Northeast, these
    circumstances "were not the ones against which the anti-collusion
    rule was intended to protect."[^48] There is no rational basis why
    rules prohibiting collusive conduct should somehow be rendered
    inapplicable in this instance. The policy objective of the rule,
    preservation of the integrity of Commission auctions, is as valid
    here as in any other Commission-conducted auction.[^49]

14. Northeast's claim that section 1.2105(c) and the NAL are invalid
    because the rule did not display a valid control number pursuant to
    section 3512 of the Paperwork Reduction Act[^50] is similarly
    meritless.[^51] The anti-collusion rule was adopted in a notice and
    comment rulemaking proceeding. As part of a larger submission, the
    anti-collusion rule was submitted to the Office of Management and
    Budget (OMB) for approval. After the Office of Management and Budget
    approved these information collections, including the anti-collusion
    rule, the appropriate notice was published in the Federal
    Register.[^52] This notice in the Federal Register specifically
    mentioned modifications to the Commission\'s anti-collusion rules
    and stated that the OMB Control Number for the anti-collusion rule
    and related information collections is 3060-0600. According to the
    exact language of the first sentence of 5 C.F.R. § 1320.5(b)(2)(ii),
    the Commission can meet OMB\'s requirement to display an OMB control
    number in a manner which is \"reasonably calculated to inform the
    public\"[^53] by several methods, including by publishing in the
    Federal Register an announcement of OMB\'s approval for the relevant
    information collections.[^54] Therefore, according to the Office of
    Management and Budget regulations, there was at least one
    appropriate display of the OMB control number for the anti-collusion
    rule prior to the submission of the short-form applications for
    Auction No. 44.

15. We also find no basis for reducing the forfeiture proposed in the
    NAL. Northeast contends that the proposed forfeiture amount is
    excessive because it did not intend to violate section
    1.2105(c).[^55] We take issue with this contention. Northeast's
    representative did not accidentally engage in a telephone
    conversation with his counterpart at Star relating to bidding
    strategies in Auction No. 44 during a period of time when such
    communications were strictly proscribed. While Northeast may not
    have set out with the specific intention of violating the rule, its
    actions were indisputably willful and inconsistent within 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.[^56] 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[^57] and the Commission has so
    interpreted the term in the section 503(b) context.[^58]

16. Finally, we also reject Northeast's contention that the NAL did not
    properly consider the factors in imposing forfeitures, as set forth
    in section 503(b)(2)(D) of the Act.[^59] In fact, in the NAL, we
    carefully considered each of these factors and have done so again
    here and find no basis for mitigating the proposed forfeiture. In
    light of the repeated admonitions about collusion by WTB to auction
    applicants in Auction No. 44, Northeast knew or should have known
    that the communications in which it engaged were proscribed. The
    violation committed by Northeast had the potential to affect the
    fundamental integrity of Auction No. 44. We conclude that the amount
    of the proposed forfeiture is justified in light of the severity of
    Northeast's misconduct.

    **IV. ORDERING CLAUSES**

17. Accordingly, IT IS ORDERED THAT, pursuant to section 503(b) of the
    Act,[^60] and sections 0.111, 0.311 and 1.80(f)(4) of the
    Commission\'s Rules,[^61] Northeast IS LIABLE FOR A MONETARY
    FORFEITURE in the amount of One Hundred Thousand Dollars (\$100,000)
    for willfully violating section 1.2105(c) of the Commission\'s
    rules.

18. 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. 

19. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
    sent by Certified Mail Return - Receipt Requested, to: Northeast
    Communications of Wisconsin, Inc., 450 Security Boulevard, P.O. Box
    19079, Green Bay, Wisconsin 54307-9079; and to its counsel: Thomas
    Gutierrez, Esq., Lukas, Nace, Gutierrez & Sachs, Chtd., 1111
    Nineteenth Street, N.W., Suite 1200, Washington, D.C. 20036.

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 Northeast Communications of Wisconsin, Inc*., 18 FCC Rcd
    17,672 (EB 2003) ("NAL").

[^4]: 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.

[^5]: 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.

[^6]: *See* NAL, paras. 11-14.

[^7]: *See* Response To Notice of Apparent Liability, filed by Thomas
    Gutierrez, Esquire, counsel for Northeast, on September 26, 2003
    ("*Response*").

[^8]: *Id.* at 4.

[^9]: *Id.* at 6.

[^10]: *Id.* at 7-9.

[^11]: *Id.* at 9.

[^12]: *Id.* at 11.

[^13]: *Id.* at 12.

[^14]: *Id.* at 13.

[^15]: *Id.* at 14-15.

[^16]: Id. at 15--16.

[^17]: *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.").

[^18]: *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.").

[^19]: 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).

[^20]: 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.

[^21]: 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 to
    all applicants 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) at 7
    ("*Procedures PN*") ("\[T\]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.").

[^22]: *Response* at 2-7.

[^23]: Northeast's reliance on section 1.935 of the rules to support its
    claim that it ceased being an applicant for the purposes of the
    anti-collusion rule lacks merit. *Response* at 5-6. Section 1.935
    relates to agreements among mutually exclusive applicants to dismiss
    their applications and clearly is inapplicable here. Northeast's
    further reliance on Public Notice, DA 02-659, 17 FCC Rcd 5,140 (WTB
    rel. March 19, 2002) and Public Notice, DA 02-1346, 17 FCC Rcd
    10,700 (WTB rel. June 7, 2002), also is misplaced. The March 19
    Public Notice was issued in connection with Auction No. 31, not
    Auction No. 44, and the June 7 Public Notice merely identified
    Northeast as among those applicants that had failed to timely make
    upfront payments and were, therefore, ineligible to bid in Auction
    No. 44. Neither public notice affected Northeast's status as an
    "applicant" in Auction No. 44 for purposes of the anti-collusion
    rule. We also reject Northeast's argument that, because it decided
    the term "bidder" may be substituted for the term "applicant" in the
    context of section 1.2105(c), and Northeast was not a bidder in
    Auction No. 44 , it follows that the Commission is prevented from
    lawfully concluding that Northeast violated section 1.2105(c).
    *Response* at 2-3. Northeast's interpretation of section 1.2105(c)
    ignores the plain language of the rule. In this regard, although
    section 1.2105(c) initially referenced "bidders," it was
    subsequently amended in 1994 to apply to "applicants." That
    amendment occurred years before the Star and Northeast applications
    were filed. *See* *In the Matter of Implementation of Section 309(J)
    of the Communications Act -- Competitive Bidding*, 9 FCC Rcd 7,684
    (1994).

[^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
    auction (FCC Form 175) . . . ." 47 C.F.R. § 1.2105(c)(7)(i).

[^27]: *Response* at p. 6-7, 13-14.

[^28]: 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 and 19, note 60.

[^29]: *See* NAL, para. 20.

[^30]: As described in the NAL, Star learned of Northeast\'s interest in
    certain markets from the auction-related communications that
    occurred between Mr. Behenna and Mr. Riordan, and thus knew about
    potential post-auction demand for the licenses in certain markets in
    Auction No. 44. During those communications, Northeast had an
    opportunity to influence Star\'s auction plan and strategy for its
    own purposes. NAL, 18 FCC Rcd at 17,681. *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 . . . .\").

[^31]: *Response* at 8.

[^32]: *Id.* at 9.

[^33]: *Supra*, note 20.

[^34]: *Response* at 9-11.

[^35]: *Id.* at 11-12.

[^36]: U.S. Const. amend. I ("First Amendment"). The First Amendment
    states: "The Congress shall make no law respecting an establishment
    of religion, or prohibiting the free exercise thereof; or abridging
    the freedom of speech, or of the press; or the right of the people
    peaceably to assemble, and to petition the Government for a redress
    of grievances."

[^37]: *U.S. v. O'Brien*, 391 U.S. 369 at 377, 88 S.Ct. 1675 at 1678, 20
    L.Ed.2d 672 at 680 (1968) ("*O'Brien*").

[^38]: *Consolidated Edison Co. of N.Y. v. Public Service Commission of
    N.Y.*, 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980)
    ("*Consolidated Edison*").

[^39]: *Ward v. Rock Against Racism*, 491 U.S. 781, 109 S.Ct. 2746, 105
    L.Ed.2d 661 (1989) ("*Ward*").

[^40]: *Ward* at 491 U.S. 799, citing [*United States v. Albertini,* 472
    U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536
    (1985)](http://web2.westlaw.com/find/default.wl?DB=708&SerialNum=1985131878&FindType=Y&ReferencePositionType=S&ReferencePosition=2906&AP=&RS=WLW4.06&VR=2.0&FN=_top&SV=Split&MT=Westlaw).

[^41]: In *Simon & Schuster v. New York Crime Victims Board*, 505 U.S.
    105 (1991), the Supreme Court invalidated New York State's so-called
    "Son of Sam" law, which prohibited a criminal from profiting from
    his crimes. The Court determined that the law was inconsistent with
    the First Amendment because it was not narrowly tailored to achieve
    the State's intended objective. *See also Consolidated Edison,
    supra,* note 38. There the Supreme Court invalidated a New York
    Public Service Commission regulation which prohibited utility bill
    inserts that discussed controversial issues of public policy. The
    Court found that the restriction directly infringed the appellant's
    rights under the First and Fourteenth Amendments because it was not
    a valid time, place or manner restriction, a permissible
    subject-matter regulation, or a narrowly drawn prohibition justified
    by a compelling state interest.

[^42]: *Western PCS BTA 1 Corp.*, 14 FCC Rcd 21,571 (1999)
    ("*Western*").

[^43]: *See* Response at 12.

[^44]: .Northeast's analysis of the *Western* decision is directly
    contradicted by the Commission's characterization of the Order: "In
    this order, we clarify that the Section 1.2105(c)(1) prohibition on
    applicants' "cooperating, collaborating, discussing or disclosing in
    any manner the substance of their bids or bidding strategies"
    prohibits an auction applicant from cooperating or collaborating
    with respect to, or discussing, another applicant's bids or bidding
    strategies, *even if it* *does not discuss its own bids or bidding
    strategy*." (emphasis added). *Western*, 14 FCC Rcd at 21,574. *See
    also Amendment of Part 1 of the Commission\'s Rules -- Competitive
    Bidding Procedures, WT Docket No. 97-82,* Seventh Report and Order,
    16 FCC Rcd 17,546 (2001).

[^45]: Northeast also provides as an example the provisions of Section
    1.2105(c)(4), which permit non-controlling attributable interests in
    a short-form applicant to acquire an ownership interest in, or enter
    into a joint bidding arrangement with, other auction applicants.
    However, the rule does not permit non-controlling attributable
    interest holders to communicate bids or bidding strategies of more
    than one of the applicants in which it holds an attributable
    interest.

[^46]: *Competitive Bidding Second Report and Order*, 9 FCC Rcd at 2386
    -- 88 ¶¶ 221 -- 226.

[^47]: *Response* at 14-15.

[^48]: *Id.* at 15.

[^49]: In fact, after Auction No. 44 had been delayed, applicants for
    the auction were reminded of the continued applicability of the
    anti-collusion rule in two public notices released before the
    auction-related communications of Mr. Behenna and Mr. Riordan.
    *Revised Schedule, Inventory and Procedures*, Public Notice*,* 17
    FCC Rcd 11,935, 11,936 (WTB 2002); *Revised Qualified Bidders,*
    Public Notice, 17 FCC Rcd 15,543, 15549 (2002).

[^50]: 44 U.S.C. § 3512 ("The Paperwork Reduction Act").

[^51]: *Response* at 15-16. \"Here, no valid control number is displayed
    with respect to section 1.2105(c). *See* section 0.408 of the rules
    . . . Due to the lack of display of a proper control number, the
    forfeiture proposed in the Notice must be rescinded.\" *Response* at
    16 (citing *Kent S. Foster,* Memorandum Opinion and Order, 7 FCC Rcd
    7971 (1992)).

[^52]: *Public Information Collections Approved by Office of Management
    and Budget, PP Docket No. 93-253,* Notice, 59 Fed. Reg. 52,302 (Oct.
    17, 1994); *see also* *Public Information Collection Requirements
    Submitted to Office of Management and Budget for Review, PP Docket
    No. 93-253,* Notice, 59 Fed. Reg. 49,938 (Sept. 30, 1994).

[^53]: 5 C.F.R. § 1320.5(b)(2)(ii) stipulates that \"\[a\]n agency shall
    provide the information described in paragraph (b)(2)(i) of this
    section in a manner that is reasonably calculated to inform the
    public.\"

[^54]: 5 C.F.R. § 1320.5(b)(2)(ii)(C).

[^55]: *Response* at 16.

[^56]: 47 U.S.C. § 312(f)(1).

[^57]: H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).

[^58]: *See, e.g.,* *Application for Review of Southern California
    Broadcasting Co.*, Memorandum Opinion and Order, 6 FCC Rcd 4387,
    4388 (1991).

[^59]: *Id.* at 16-18.

[^60]: 47 U.S.C. § 503(b).

[^61]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).