38018 Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Notices 

point-to-point (non-relay) 

communications between VRS users, 

when a user switches providers but 

wishes to use equipment supplied by 

another default provider. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. E9–18260 Filed 7–29–09; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

[AU Docket No. 09–56; DA 09–1376] 

Auction of Broadband Radio Service 

(BRS) Licenses Scheduled for October 

27, 2009; Notice and Filing 

Requirements, Minimum Opening Bids, 

Upfront Payments, and Other 

Procedures for Auction 86 

AGENCY: Federal Communications 

Commission. 

ACTION: Notice. 

SUMMARY: This document announces the 

procedures and minimum opening bids 

for the upcoming auction of Broadband 

Radio Service Licenses (Auction 86). 

This document is intended to 

familiarize prospective bidders with the 

procedures and minimum opening bids 

for the auction. 

DATES: Applications to participate in 

Auction 86 must be filed prior to 6:00 

p.m. Eastern Time (ET) on August 18, 

2009. Bidding for licenses in Auction 86 

is scheduled to begin on October 27, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Wireless Telecommunications Bureau, 

Auctions and Spectrum Access Division: 

For legal questions: Sayuri Rajapakse at 

(202) 418–0660. For general auction 

questions: Debbie Smith or Linda 

Sanderson at (717) 338–2868. 

Broadband Division: For licensing 

information and service rule questions: 

Nancy Zaczek (legal) or Stephen Zak 

(technical) at 202–418–2487. To request 

materials in accessible formats (Braille, 

large print, electronic files or 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). 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Auction 86 Procedures 

Public Notice, which was released on 

June 26, 2009. The complete text of the 

Auction 86 Procedures Public Notice, 

including attachments, as well as 

related Commission documents, are 

available for public inspection and 

copying from 8 a.m. to 4:30 p.m. ET 

Monday through Thursday and from 8 

a.m. to 11:30 a.m. ET on Fridays in the 

FCC Reference Information Center, 445 

12th Street, SW., Room CY–A257, 

Washington, DC 20554. The Auction 86 

Procedures Public Notice and related 

Commission documents may also be 

purchased from the Commission’s 

duplicating contractor, Best Copy and 

Printing, Inc. (BCPI), Portals II, 445 12th 

Street, SW, Room CY–B402, 

Washington, DC, 20554, telephone 202– 

488–5300, facsimile 202–488–5563, or 

Web site: http://www.BCPIWEB.com, 

using document number DA 09–1376 

for the Auction 86 Procedures Public 

Notice. The Auction 86 Procedures 

Public Notice and related documents are 

also available on the Internet at the 

Commission’s Web site: http:// 

wireless.fcc.gov/auctions/86/. 

I. General Information 

A. Introduction 

1. The Wireless Telecommunications 

Bureau (Bureau) announces the 

procedures and minimum opening bid 

amounts for the upcoming auction of 

licenses for unassigned Broadband 

Radio Service (BR) spectrum. This 

auction, which is designated as Auction 

86, is scheduled to commence on 

October 27, 2009. Auction 86 will offer 

78 licenses. On April 24, 2009 the 

Bureau released a public notice seeking 

comment on competitive bidding 

procedures to be used in Auction 86. 

Interested parties submitted 7 comments 

and 4 reply comments in response to the 

Auction 86 Comment Public Notice 74 

FR 22166, May 12, 2009. 

i. Licenses To Be Offered in Auction 86 

2. The licenses to be offered in 

Auction 86 consist of the available 

spectrum in 78 BRS service areas. BRS 

service areas are BTAs or additional 

service areas similar to BTAs adopted 

by the Commission. In the BRS/EBS 4th 

MO&O, the Commission amended its 

rules to establish Gulf of Mexico service 

areas for BRS, and Auction 86 therefore 

includes licenses for three BRS service 

areas in the Gulf of Mexico. A complete 

list of licenses available for Auction 86 

is included as Attachment A of the 

Auction 86 Procedures Public Notice. 

3. Two commenters sought the 

removal of certain licenses from the 

Auction 86 inventory: SarasotaBradenton, Florida, BTA 408; 

Burlington, Vermont, BTA 063; and 

Rutland-Bennington, Vermont, BTA 

388. The Bureau does not believe that 

the public interest would be served by 

the removal of the licenses from the 

auction. Therefore the Bureau declines 

to remove these three licenses from the 

Auction 86 inventory. 

B. License Descriptions 

4. Where unencumbered, the licenses 

to be auctioned consist of 76.5 

megahertz of spectrum at 2496–2502, 

2602–2615, and 2616–2673.5 MHz. We 

note that the licenses issued pursuant to 

this auction will be issued pursuant to 

the post-transition band plan contained 

in Section 27.5(i)(2) of the 

Commission’s rules. A table showing 

the channelization of this spectrum is 

included as Attachment B of the 

Auction 86 Procedures Public Notice. 

C. Rules and Disclaimers 

i. Relevant Authority 

5. Prospective applicants must 

familiarize themselves thoroughly with 

the Commission’s general competitive 

bidding as well as decisions in 

proceedings regarding competitive 

bidding procedures, application 

requirements, and obligations of 

Commission licensees. 

6. Commenters sought a revision of 

the performance requirement set forth in 

the BRS service rules. 47 CFR 27.14(o) 

provides that a BRS licensee must 

demonstrate substantial service in its 

service area no later than May 1, 2011. 

Other commenters oppose the proposal, 

contending that it would not be in the 

public interest. The requests to change 

the BRS service rules are beyond the 

scope of the public notice regarding the 

procedures for Auction 86. Any such 

rule change would require action by the 

full Commission. Absent such action, 

new licensees will be subject to the 

requirements set forth in the current 

rules. 

ii. Prohibition of Collusion; Compliance 

With Antitrust Laws 

7. To ensure the competitiveness of 

the auction process, 47 CFR 1.2105(c) of 

the Commission’s rules prohibits 

auction applicants for licenses in any of 

the same geographic license areas from 

communicating with each other about 

bids, bidding strategies, or settlements 

unless such applicants have identified 

each other on their short-form 

applications (FCC Form 175) as parties 

with whom they have entered into 

agreements pursuant to 47 CFR 

1.2105(a)(2)(viii). 

a. Entities Subject to Section 1.2105 

8. The anti-collusion rule will apply 

to any applicants that submit short-form 

applications seeking to participate in a 

Commission auction and select licenses 

in the same markets. In Auction 86, the 

rule would prohibit any applicants that 

have selected any of the same licenses 


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in their short form applications from 

communicating absent an agreement. 

9. Under the terms of the rule, 

applicants that have applied for licenses 

covering the same markets—unless they 

have identified each other on their short 

form applications as parties with whom 

they have entered into agreements 

under 47 CFR 1.2105(a)(2)(viii)—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 postauction market structure. This 

prohibition applies to all applicants 

regardless of whether such applicants 

become qualified bidders or actually 

bid. 

10. For purposes of this prohibition, 

47 CFR 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. 

11. Information concerning 

applicants’ license selections will not be 

available to the public. Therefore, the 

Commission will inform each applicant 

by letter of the identity of each of the 

other applicants that has applied for 

licenses covering any of the same 

geographic areas as the licenses that it 

has selected in its short-form 

application. 

b. Prohibition Applies Until Down 

Payment Deadline 

12. 47 CFR 1.2105(c)’s anti-collusion 

prohibition begins at the short-form 

application filing deadline and ends at 

the down payment deadline after the 

auction. 

c. Prohibited Communications 

13. Applicants for the upcoming 

Auction 86 and other parties that may 

be engaged in discussion with such 

applicants are cautioned on the need to 

comply with the Commission’s anticollusion rule, 47 CFR 1.2105(c). The 

anti-collusion rule prohibits not only a 

communication about an applicant’s 

own bids or bidding strategy, but also a 

communication of another applicant’s 

bids or bidding strategy. While the anticollusion rule provisions do not 

prohibit business negotiations among 

auction applicants, applicants must 

remain vigilant so as not to 

communicate directly or indirectly 

information that affects, or could affect, 

bids or bidding strategy, or the 

negotiation of settlement agreements. 

14. The Commission remains vigilant 

about prohibited communications 

taking place in other situations. For 

example, the Commission has warned 

that prohibited communications 

concerning bids and bidding strategies 

may include communications regarding 

capital calls or requests for additional 

funds in support of bids or bidding 

strategies to the extent such 

communications convey information 

concerning the bids and bidding 

strategies directly or indirectly. 

15. Applicants are hereby placed on 

notice that public disclosure of 

information relating to bidder interests 

and bidder identities that is confidential 

at the time of disclosure may violate the 

anti-collusion rule. This is so even 

though similar types of information 

were revealed prior to and during other 

Commission auctions subject to 

different information procedures. 

Bidders should use caution in their 

dealings with other parties, such as 

members of the press, financial analysts, 

or others who might become a conduit 

for the communication of prohibited 

bidding information. For example, 

where limited information disclosure 

procedures are in place, as for Auction 

86, a qualified bidder’s statement to the 

press that it has lost bidding eligibility 

and stopped bidding in the auction 

could give rise to a finding of an anticollusion rule violation. Similarly, an 

applicant’s public statement of intent 

not to participate in Auction 86 bidding 

could also violate the rule. 

16. Applicants selecting licenses for 

any of the same geographic license areas 

must not communicate directly or 

indirectly about bids or bidding 

strategy. Accordingly, such applicants 

are encouraged not to use the same 

individual as an authorized bidder. A 

violation of the anti-collusion rule could 

occur if an individual acts as the 

authorized bidder for two or more 

competing applicants, and conveys 

information concerning the substance of 

bids or bidding strategies between such 

applicants. Also, if the authorized 

bidders are different individuals 

employed by the same organization 

(e.g., law firm or engineering firm or 

consulting firm), a violation similarly 

could occur. In such a case, at a 

minimum, applicants should certify on 

their applications that precautionary 

steps have been taken to prevent 

communication between authorized 

bidders and that applicants and their 

bidding agents will comply with the 

anti-collusion rule. 

17. A violation of the anti-collusion 

rule could occur in other contexts, such 

as an individual serving as an officer for 

two or more applicants. Moreover, the 

Commission has found a violation of the 

anti-collusion rule where a bidder used 

the Commission’s bidding system to 

disclose its bidding strategy in a manner 

that explicitly invited other auction 

participants to cooperate and 

collaborate in specific markets, and has 

placed auction participants on notice 

that the use of its bidding system to 

disclose market information to 

competitors will not be tolerated and 

will subject bidders to sanctions. 

18. In addition, when completing 

short-form applications, applicants 

should avoid any statements or 

disclosures that may violate the 

Commission’s anti-collusion rule, 

particularly in light of the limited 

information procedures in effect for 

Auction 86. Specifically, applicants 

should avoid including any information 

in their short-form applications that 

might convey information regarding 

their license selection, such as using 

applicant names that refer to licenses 

being offered, referring to certain 

licenses or markets in describing 

bidding agreements, or including any 

information in attachments that may 

otherwise disclose applicants’ license 

selections. 

d. Disclosure of Bidding Agreements 

and Arrangements 

19. The Commission’s rules do not 

prohibit applicants from entering into 

otherwise lawful bidding agreements 

before filing their short-form 

applications, as long as they disclose the 

existence of the agreement(s) in their 

short-form application. If parties agree 

in principle on all material terms prior 

to the short-form filing deadline, each 

party to the agreement must identify the 

other party or parties to the agreement 

on its short-form application under 47 

CFR 1.2105(c), even if the agreement has 

not been reduced to writing. If the 

parties have not agreed in principle by 

the short-form filing deadline, they 

should not include the names of parties 

to discussions on their applications, and 

they may not continue negotiations, 

discussions or communications with 

any other applicants for licenses 

covering any of the same geographic 

areas after the short-form filing 

deadline. 

e. Anti-Collusion Certification 

20. By electronically submitting a 

short-form application following the 

electronic filing procedures set forth in 

Attachment C to the Auction 86 

Procedures Public Notice, each 

applicant certifies its compliance with 

47 CFR 1.2105(c). However, the Bureau 


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cautions that merely filing a certifying 

statement as part of an application will 

not outweigh specific evidence that 

collusive behavior has occurred, nor 

will it preclude the initiation of an 

investigation when warranted. The 

Commission has stated that it intends to 

scrutinize carefully any instances in 

which bidding patterns suggest that 

collusion may be occurring. Any 

applicant found to have violated the 

anti-collusion rule may be subject to 

sanctions. 

f. Antitrust Laws 

21. Applicants are also reminded that, 

regardless of compliance with the 

Commission’s rules, they remain subject 

to the antitrust laws, which are designed 

to prevent anticompetitive behavior in 

the marketplace. Compliance with the 

disclosure requirements of the 

Commission’s anti-collusion rule will 

not insulate a party from enforcement of 

the antitrust laws. To the extent the 

Commission becomes aware of specific 

allegations that suggest that violations of 

the federal antitrust laws may have 

occurred, the Commission may refer 

such allegations to the United States 

Department of Justice for investigation. 

If an applicant is found to have violated 

the antitrust laws or the Commission’s 

rules 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, among other sanctions. 

g. Duty To Report Prohibited 

Communications; Reporting Procedure 

22. If an applicant makes or receives 

a communication that appears to violate 

the anti-collusion rule, it must report 

such communication in writing to the 

Commission immediately, and in no 

case later than five business days after 

the communication occurs. 47 CFR 

1.2105(c)(6) provides that any applicant 

that makes or receives a communication 

prohibited by 47 CFR 1.2105(c) must 

report such communication to the 

Commission in writing immediately, 

and in no case later than five business 

days after the communication occurs. 

The Commission has clarified that each 

applicant’s obligation to report any such 

communication continues beyond the 

five-day period after the communication 

is made, even if the report is not made 

within the five-day period. 

23. In addition, 47 CFR 1.65 requires 

an applicant to maintain the accuracy 

and completeness of information 

furnished in its pending application and 

to notify the Commission within 30 

days of any substantial change that may 

be of decisional significance to that 

application. Thus, 47 CFR 1.65 requires 

an auction applicant to notify the 

Commission of any substantial change 

to the information or certifications 

included in its pending short-form 

application. Applicants are therefore 

required by 47 CFR 1.65 to report to the 

Commission any communications of 

bids or bidding strategies that result in 

a bidding arrangement, agreement, or 

understanding after the short-form filing 

application deadline. 

24. Parties reporting communications 

pursuant to 47 CFR 1.65 or 1.2105(c)(6) 

must take care to ensure that any such 

reports of prohibited communications 

do not themselves give rise to a 

violation of the anti-collusion rule. For 

example, a party’s report of a prohibited 

communication could violate the rule 

by communicating prohibited 

information to other applicants through 

the use of Commission filing procedures 

that would allow such materials to be 

made available for public inspection. A 

party seeking to report such prohibited 

communications should consider 

submitting its report with a request that 

the report or portions of the submission 

be withheld from public inspection. 

Such parties are also encouraged to 

consult with the Auctions and Spectrum 

Access Division staff if they have any 

questions about the procedures for 

submitting such reports. 

25. Applicants must be aware that 

failure to comply with the 

Commission’s rules can result in 

enforcement action. 

h. Winning Bidders Must Disclose 

Terms of Agreements 

26. Applicants that are winning 

bidders will be required to disclose in 

their long-form applications the specific 

terms, conditions, and parties involved 

in any bidding consortia, joint ventures, 

partnerships, and other arrangements 

entered into relating to the competitive 

bidding process. 

i. Additional Information Concerning 

Anti-Collusion Rule 

27. A summary listing of documents 

issued by the Commission and the 

Bureau addressing the application of the 

anti-collusion rule may be found in 

Attachment F of the Auction 86 

Procedures Public Notice. These 

documents are available on the 

Commission’s auction anti-collusion 

Web page. 

iii. Incumbency Issues 

28. There are pre-existing BRS sitebased incumbent licenses. The service 

area for each of those incumbent 

licenses is a 35-mile circle centered at 

the station’s reference coordinates, and 

is bounded by the chord(s) drawn 

between the intersection points of the 

licensee’s previous protected service 

area and those of respective adjacent 

market, co-channel licensees. Any 

licenses granted pursuant to this auction 

will not include the geographic service 

areas of any co-channel incumbent sitebased licenses. If a site-based incumbent 

license cancels or is forfeited, however, 

the right to operate within that area 

shall revert to the overlay licensee that 

holds the license for the BRS service 

area that encompasses that BTA. BRS 

incumbent licenses are entitled to 

interference protection in accordance 

with the applicable technical rules. BRS 

licenses have previously been awarded 

through auction (Auction 6) for BTAs 

other than those in this auction, and the 

previously-awarded licenses may have 

since been assigned or partitioned. Such 

BRS geographic area licenses authorize 

operation within a BTA and provide the 

licensee with rights similar to those 

being offered in Auction 86. 

29. In addition, on the E and F 

channel groups, grandfathered 

Educational Broadband Service (EBS) 

licenses originally issued on those 

channels prior to 1983 may continue to 

operate indefinitely. Such grandfathered 

EBS licenses must be protected in 

accordance with the applicable 

technical rules. 

30. Operations within the 2614–2618 

MHz band are secondary to adjacent 

channel operations. 

31. Finally, in the 2496–2500 MHz 

band, BRS licensees must share the 

band on a co-primary basis with the 

Code Division Multiple Access, Mobile 

Satellite Service, grandfathered 

Broadcast Auxiliary Service stations, 

and grandfathered land mobile and 

microwave licenses licensed under Parts 

90 and 101 of the Commission’s rules, 

respectively. In addition, the 2400–2500 

MHz band is allocated for use by 

Industrial, Scientific, and Medical 

equipment under Part 18 of the 

Commission’s rules. 

32. A comment was filed noting that 

in certain markets, the transition to the 

new band plan is not yet complete, and 

in those markets, new licensees may not 

be able to operate on some or all of their 

spectrum until the transition process is 

completed. Under the Commission’s 

rules, until a transition has been 

completed in a BTA, existing licensees 

operating under the pre-transition band 

plan are entitled to interference 

protection in accordance with the 

applicable technical rules. Potential 

bidders can check on the status of 

transition in a market by checking the 

Commission’s Electronic Comment 


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Filing System and reviewing WT Docket 

No. 06–136. If a post-transition 

notification has been filed for a BTA, 

the transition has been completed in 

that BTA. In a BTA where no transition 

initiation plan had been filed by January 

21, 2009, for a BTA, existing licensees 

in the BTA could file notifications with 

the Commission by April 21, 2009, of an 

intent to self-transition. Once a licensee 

completes a self-transition, it is required 

to modify its license to reflect its 

operation pursuant to the new band 

plan. Potential bidders can review the 

Universal Licensing System to see if a 

license has been modified to operate 

pursuant to the new band plan. 

33. The commenter also asked that 

potential bidders be reminded of 

obligations to reimburse certain 

licensees of their costs in transitioning 

to the new BRS/EBS band plan. Under 

the Commission’s rules, BRS licensees 

are responsible for reimbursing 

transition proponents or selftransitioning EBS licensees in 

accordance with the Commission’s 

rules. Potential bidders should be aware 

that in BTAs where the transition to the 

new band plan has not yet been 

completed as of the date licenses are 

issued pursuant to this auction, they 

may be required to reimburse eligible 

licensees for a pro rata share of 

transition costs. 

a. International Coordination 

34. BRS licensees must individually 

apply for and receive a separate license 

for each transmitter if the proposed 

operation requires coordination with 

either Mexico or Canada. Potential 

bidders seeking licenses in Auction 86 

for geographic areas that are near the 

Canadian or Mexican borders are 

encouraged to consult all international 

agreements with Canada and Mexico. 

We also note that the current agreement 

with Mexico does not provide for twoway operation in the border area. If the 

agreements with Mexico or Canada are 

modified in the future, licensees must 

likewise comply with these 

modifications. 

b. Quiet Zones 

35. BRS licensees must individually 

apply for and receive a separate license 

for each transmitter if the proposed 

operation would affect the radio quiet 

zones set forth in the Commission’s 

rules. 

iv. Due Diligence 

36. The Bureau cautions potential 

applicants formulating their bidding 

strategies to investigate and consider the 

extent to which these frequencies are 

occupied. For example, there are 

incumbent operations already licensed 

and operating in the band that must be 

protected. These limitations may restrict 

the ability of BRS licensees to use 

certain portions of the electromagnetic 

spectrum or provide service to certain 

areas in their geographic license areas. 

Bidders should become familiar with 

the status of these operations and 

applicable Commission rules, orders 

and any pending proceedings related to 

the service, in order to make reasoned, 

appropriate decisions about their 

participation in this auction and their 

bidding strategy. 

37. Potential bidders are reminded 

that they are solely responsible for 

investigating and evaluating all 

technical and marketplace factors that 

may have a bearing on the value of the 

licenses being offered in this auction. 

The Commission makes no 

representations or warranties about the 

use of this spectrum for particular 

services. Applicants should be aware 

that a Commission auction represents an 

opportunity to become a licensee 

subject to certain conditions and 

regulations. The auction does not 

constitute an endorsement by the 

Commission of any particular service, 

technology, or product, nor does a 

Commission license constitute a 

guarantee of business success. 

Applicants should perform their 

individual due diligence before 

proceeding as they would with any new 

business venture. 

38. Potential bidders are strongly 

encouraged to conduct their own 

research prior to the beginning of 

bidding in Auction 86 in order to 

determine the existence of any pending 

legislative, administrative or judicial 

proceedings that might affect their 

decision regarding participation in the 

auction. Participants in Auction 86 are 

strongly encouraged to continue such 

research throughout 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 

fully comply with the Commission’s 

technical and legal requirements as well 

as other applicable Federal, state, and 

local laws. 

39. Applicants should also be aware 

that certain pending and future 

proceedings, including rulemaking 

proceedings or petitions for rulemaking, 

applications (including those for 

modification), requests for special 

temporary authority, waiver requests, 

petitions to deny, petitions for 

reconsideration, informal oppositions, 

and applications for review, before the 

Commission may relate to particular 

applicants or incumbent licensees or the 

licenses available in Auction 86. 

Pending and future judicial proceedings 

may also relate to particular applicants 

or incumbent licensees, or the licenses 

available in Auction 86. Prospective 

bidders are responsible for assessing the 

likelihood of the various possible 

outcomes, and considering their 

potential impact on spectrum licenses 

available in this auction. 

40. Applicants should perform due 

diligence to identify and consider all 

proceedings that may affect the 

spectrum licenses being auctioned and 

that could have an impact on the 

availability of spectrum for Auction 86. 

In addition, although the Commission 

may continue to act on various pending 

applications, informal objections, 

petitions, and other requests for 

Commission relief, some of these 

matters may not be resolved by the 

beginning of bidding in the auction. 

41. Applicants are solely responsible 

for identifying associated risks and for 

investigating and evaluating the degree 

to which such matters may affect their 

ability to bid on, otherwise acquire, or 

make use of licenses being offered. 

42. Applicants may obtain 

information about licenses available in 

Auction 86 through the Bureau’s online 

licensing databases at http:// 

wireless.fcc.gov/uls. Applicants may 

query the database online and download 

a copy of their search results if desired. 

Detailed instructions on using License 

Search (including frequency searches 

and the GeoSearch capability) and 

downloading query results are available 

online by selecting the ‘‘?’’ button at the 

upper right-hand corner of the License 

Search screen or by going to the 

Universal Licensing System (ULS) 

support site at http://esupport.fcc.gov/ 

licensing.htm. Applicants should direct 

questions regarding the ULS search 

capabilities to the FCC ULS Technical 

Support hotline at (877) 480–3201, 

option two. The hotline is available to 

assist with questions Monday through 

Friday, from 8 a.m. to 6 p.m. ET. In 

order to provide better service to the 

public, all calls to the hotline are 

recorded. 

43. The Commission makes no 

representations or guarantees regarding 

the accuracy or completeness of 

information in its databases or any third 

party databases, including, for example, 

court docketing systems. To the extent 

the Commission’s databases may not 

include all information deemed 

necessary or desirable by an applicant, 

applicants may obtain or verify such 

information from independent sources 

or assume the risk of any 


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incompleteness or inaccuracy in said 

databases. Furthermore, the 

Commission makes no representations 

or guarantees regarding the accuracy or 

completeness of information that has 

been provided by incumbent licensees 

and incorporated into its databases. 

44. Potential applicants are strongly 

encouraged to physically inspect any 

prospective sites located in, or near, the 

geographic area for which they plan to 

bid, and also to familiarize themselves 

with the environmental review 

obligations. 

v. Use of Integrated Spectrum Auction 

System 

45. The Commission will make 

available a browser-based bidding 

system to allow bidders to participate in 

Auction 86 over the Internet using the 

Commission’s Integrated Spectrum 

Auction System (ISAS or FCC Auction 

System). The Commission makes no 

warranty whatsoever with respect to the 

FCC Auction System. In no event shall 

the Commission, or any of its officers, 

employees or agents, be liable for any 

damages whatsoever (including, but not 

limited to, loss of business profits, 

business interruption, loss of business 

information, or any other loss) arising 

out of or relating to the existence, 

furnishing, functioning or use of the 

FCC Auction System that is accessible 

to qualified bidders in connection with 

this auction. Moreover, no obligation or 

liability will arise out of the 

Commission’s technical, programming 

or other advice or service provided in 

connection with the FCC Auction 

System. 

vi. Environmental Review Requirements 

46. Licensees must comply with the 

Commission’s rules regarding 

implementation of the National 

Environmental Policy Act and other 

federal environmental statutes. The 

construction of a wireless antenna 

facility is a federal action and the 

licensee must comply with the 

Commission’s environmental rules for 

each such facility. 

D. Auction Specifics 

i. Auction Start Date 

47. Bidding in Auction 86 will begin 

on Tuesday, October 27, 2009, as 

announced in the Auction 86 Comment 

Public Notice. The initial schedule for 

bidding will be announced by public 

notice at least one week before the start 

of the auction; unless otherwise 

announced bidding on all licenses will 

be conducted on each business day until 

bidding has stopped on all licenses. 

ii. Bidding Methodology 

48. The bidding methodology for 

Auction 86 will be simultaneous 

multiple round (SMR) bidding. The 

Commission will conduct this auction 

over the Internet using the FCC Auction 

System, and telephonic bidding will be 

available as well. Qualified bidders are 

permitted to bid electronically via the 

Internet or by telephone. All telephone 

calls are recorded. 

iii. Pre-Auction Dates and Deadlines 

49. The following dates and deadlines 

apply: 

Auction Seminar ................................................................................................................................. August 5, 2009. 

Short-Form Application (FCC Form 175) Filing Window Opens ................................................... August 5, 2009; 12:00 noon ET. 

Short-Form Application (FCC Form 175) Filing Window Deadline ............................................... August 18, 2009; prior to 6:00 p.m. ET. 

Upfront Payments (via wire transfer) ................................................................................................ September 24, 2009; 6:00 p.m. ET. 

Mock Auction ..................................................................................................................................... October 23, 2009. 

Auction Begins .................................................................................................................................... October 27, 2009. 

iv. Requirements for Participation 

50. Those wishing to participate in 

this auction must: (1) submit a shortform application (FCC Form 175) 

electronically prior to 6:00 p.m. ET, 

August 18, 2009; (2) submit a sufficient 

upfront payment and an FCC 

Remittance Advice Form (FCC Form 

159) by 6:00 p.m. ET, September 24, 

2009 and (3) comply with all provisions 

outlined in the Auction 86 Procedures 

Public Notice and applicable 

Commission rules. 

II. Short-Form Application (FCC Form 

175) Requirements 

A. General Information Regarding 

Short-Form Applications 

51. Entities seeking licenses available 

in Auction 86 must file a short-form 

application electronically via the FCC 

Auction System prior to 6 p.m. ET on 

August 18, 2009, following the 

procedures prescribed in Attachment C 

of the Auction 86 Procedures Public 

Notice. Applicants filing a short-form 

application are subject to the 

Commission’s anti-collusion rules 

beginning on the deadline for filing. The 

information provided in its short-form 

application will be used in determining, 

among other things, if the applicant is 

eligible for a bidding credit. 

52. Applicants bear full responsibility 

for submitting accurate, complete and 

timely short-form applications. All 

applicants must certify on their shortform applications under penalty of 

perjury that they are legally, technically, 

financially and otherwise qualified to 

hold a license. Applicants should read 

the instructions set forth in Attachment 

C carefully and should consult the 

Commission’s rules to ensure that all 

the information that is required under 

the Commission’s rules is included with 

their short-form applications. 

53. An entity may not submit more 

than one short-form application for a 

single auction. If a party submits 

multiple short-form applications, only 

one application may become qualified 

to bid. 

54. Applicants also should note that 

submission of a short-form application 

and any amendments thereto constitutes 

a representation by the certifying official 

that he or she is an authorized 

representative of the applicant, that he 

or she has read the form’s instructions 

and certifications, and that the contents 

of the application, its certifications, and 

any attachments are true and correct. An 

applicant cannot change the certifying 

official to its application. Submission of 

a false certification to the Commission 

may result in penalties, including 

monetary forfeitures, license forfeitures, 

ineligibility to participate in future 

auctions, and/or criminal prosecution. 

B. License Selection 

55. An applicant must select the 

licenses on which it wants to bid from 

the Eligible Licenses list on its shortform application. Applicants will not be 

able to change their license selections 

after the short-form application 

deadline. Applicants interested in 

participating in Auction 86 must have 

selected license(s) available in the 

respective auction by the short-form 

application deadline. Applicants must 

confirm their license selections before 

the deadline for submitting short-form 

applications. The FCC Auction System 

will not accept bids from an applicant 

on licenses that the applicant has not 

selected on its short-form application. 


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C. Disclosure of Bidding Arrangements 

56. An applicant must identify in its 

short-form application all parties with 

whom it has entered into any 

agreements, arrangements, or 

understandings of any kind relating to 

the licenses being auctioned, including 

any agreements relating to post-auction 

market structure. 

57. Applicants also will be required to 

certify under penalty of perjury in their 

short-form applications that they have 

not entered and will not enter into any 

explicit or implicit agreements, 

arrangements or understandings of any 

kind with any parties, other than those 

identified in the application, regarding 

the amount of their bids, bidding 

strategies, or the particular licenses on 

which they will or will not bid. If an 

applicant has had discussions, but has 

not reached an agreement by the shortform application filing deadline, it 

would not include the names of parties 

to the discussions on its application and 

may not continue such discussions with 

any applicants after the deadline. 

58. While the anti-collusion rules do 

not prohibit non-auction-related 

business negotiations among auction 

applicants, applicants are reminded that 

certain discussions or exchanges could 

touch upon impermissible subject 

matters because they may convey 

pricing information and bidding 

strategies. Further, as discussed above, 

compliance with the disclosure 

requirements of the Commission’s anticollusion rule will not insulate a party 

from enforcement of the antitrust laws. 

D. Ownership Disclosure Requirements 

59. All applicants must comply with 

the uniform Part 1 ownership disclosure 

standards and provide information 

required by 47 CFR 1.2105 and 1.2112 

of the Commission’s rules. Specifically, 

in completing the short-form 

application, applicants will be required 

to fully disclose information on the real 

party or parties-in-interest and 

ownership structure of the applicant. 

The ownership disclosure standards for 

the short-form application are 

prescribed in 47 CFR 1.2105 and 1.2112 

of the Commission’s rules. Each 

applicant is responsible for information 

submitted in its short-form application 

being complete and accurate. 

60. An applicant’s most current 

ownership information on file with the 

Commission, if in an electronic format 

compatible with the short-form 

application (FCC Form 175) (such as 

information submitted with an 

ownership disclosure information report 

(FCC Form 602) or in a short-form 

application (FCC Form 175) filed for a 

previous auction using ISAS) will 

automatically be entered into the 

applicant’s short-form application. An 

applicant is responsible for ensuring 

that the information submitted in its 

short-form application for Auction 86 is 

complete and accurate. Accordingly, 

applicants should carefully review any 

information automatically entered to 

confirm that it is complete and accurate 

as of the Auction 86 deadline for filing 

the short-form application. If any 

information that was entered 

automatically needs to be changed, 

applicants must do so directly in the 

short-form application. 

E. Designated Entity Provisions 

61. Eligible applicants in Auction 86 

may claim designated entity status, as 

an entrepreneur, a small business, or 

very small business eligible for bidding 

credits. Applicants should review 

carefully the Commission’s recent 

decisions regarding the designated 

entity provisions. 

i. Bidding Credits for Small and Very 

Small Businesses 

62. A bidding credit represents the 

amount by which a bidder’s winning 

bid will be discounted. For Auction 86, 

bidding credits will be available to 

entrepreneurs, small businesses and 

very small businesses, and consortia 

thereof. 

63. The level of bidding credit is 

determined as follows: (1) a bidder with 

attributed average annual gross revenues 

that exceed $15 million and do not 

exceed $40 million for the preceding 

three years (small business) will receive 

a 15 percent discount on its winning 

bid; (2) a bidder with attributed average 

annual gross revenues that exceed $3 

million and do not exceed $15 million 

for the preceding three years (very small 

business) will receive a 25 percent 

discount on its winning bid; and (3) a 

bidder with attributed average annual 

gross revenues that do not exceed $3 

million for the preceding three years 

(entrepreneur) will receive a 35 percent 

discount on its winning bid. 

ii. Attributable Interests 

a. Controlling Interests 

64. Controlling interests of an 

applicant include individuals and 

entities with either de facto or de jure 

control of the applicant. Typically, 

ownership of greater than 50 percent of 

an entity’s voting stock evidences de 

jure control. De facto control is 

determined on a case-by-case basis. 

b. Affiliates 

65. Affiliates of an applicant or 

controlling interest include an 

individual or entity that: (1) Directly or 

indirectly controls or has the power to 

control the applicant; (2) is directly or 

indirectly controlled by the applicant; 

(3) is directly or indirectly controlled by 

a third party that also controls or has the 

power to control the applicant; or (4) 

has an identity of interest with the 

applicant. The Commission’s definition 

of an affiliate of the applicant 

encompasses both controlling interests 

of the applicant and affiliates of 

controlling interests of the applicant. 

For more information regarding 

affiliates, applicants should refer to 47 

CFR 1.2110(c)(5) and Attachment C to 

the Auction 86 Procedures Public 

Notice. 

c. Material Relationships 

66. The Commission requires the 

consideration of certain leasing and 

resale (including wholesale) 

relationships—referred to as material 

relationships—in determining 

designated entity eligibility, i.e., for 

bidding credits. Material relationships 

fall into two categories: Impermissible 

and attributable. 

67. An applicant or licensee has an 

impermissible material relationship 

when it has agreements with one or 

more other entities for the lease or resale 

(including under a wholesale 

agreement) of, on a cumulative basis, 

more than 50 percent of the spectrum 

capacity of any of its licenses. If an 

applicant or a licensee has an 

impermissible material relationship, it 

is, as a result, (i) ineligible for the award 

of designated entity benefits and (ii) 

subject to unjust enrichment on a 

license-by-license basis. 

68. An applicant or licensee has an 

attributable material relationship when 

it has one or more agreements with any 

individual entity for the lease or resale 

(including under a wholesale 

agreement) of, on a cumulative basis, 

more than 25 percent of the spectrum 

capacity of any individual license held 

by the applicant or licensee. The 

attributable material relationship will 

cause the gross revenues of that entity 

and its attributable interest holders to be 

attributed to the applicant or licensee 

for the purposes of determining the 

applicant’s or licensee’s (i) eligibility for 

designated entity benefits and (ii) 

liability for unjust enrichment on a 

license-by-license basis. 

69. The Commission grandfathered 

material relationships in existence 

before the release of the Designated 

Entity Second Report and Order, 71 FR 

26245, May 5, 2006, meaning that those 

preexisting relationships alone would 

not cause the Commission to examine a 

designated entity’s ongoing eligibility 


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for benefits or its liability for unjust 

enrichment. The Commission did not, 

however, grandfather preexisting 

material relationships for 

determinations of an applicant’s or 

licensee’s designated entity eligibility 

for future auctions or in the context of 

future assignments, transfers of control, 

spectrum leases, or other reportable 

eligibility events. Rather, the occurrence 

of any of those eligibility events after 

the release date of the Designated Entity 

Second Report and Order triggers a 

reexamination of the applicant’s or 

licensee’s designated entity eligibility, 

taking into account all existing material 

relationships, including those 

previously grandfathered. 

d. Gross Revenue Exceptions 

70. In recent years the Commission 

has also made other modifications to its 

rules governing the attribution of gross 

revenues for purposes of determining 

designated entity eligibility. For 

example, the Commission has clarified 

that, in calculating an applicant’s gross 

revenues under the controlling interest 

standard, it will not attribute the 

personal net worth, including personal 

income, of its officers and directors to 

the applicant. 

71. The Commission has also 

exempted from attribution to the 

applicant the gross revenues of the 

affiliates of a rural telephone 

cooperative’s officers and directors, if 

certain conditions specified in 47 CFR 

1.2110(b)(3)(iii) of the Commission’s 

rules are met. An applicant claiming 

this exemption must provide in an 

attachment an affirmative statement that 

the applicant, affiliate and/or 

controlling interest is an eligible rural 

telephone cooperative within the 

meaning of 47 CFR 1.2110(b)(3)(iii), and 

must supply any additional information 

as may be required to demonstrate 

eligibility for the exemption from the 

attribution rule. Applicants seeking to 

claim this exemption must meet all of 

the conditions. 

e. Bidding Consortia 

72. A consortium of small businesses, 

very small businesses, or entrepreneurs 

is a conglomerate organization 

composed of two or more entities, each 

of which individually satisfies the 

definition of a small business, very 

small business, or entrepreneur. Thus, 

each member of a consortium of small 

businesses, very small businesses, or 

entrepreneurs that applies to participate 

in Auction 86 must individually meet 

the criteria for small businesses, very 

small businesses, or entrepreneurs. Each 

consortium member must disclose its 

gross revenues along with those of its 

affiliates, its controlling interests, the 

affiliates of its controlling interests, and 

any entities having an attributable 

material relationship with the member. 

Although the gross revenues of the 

consortium members will not be 

aggregated for purposes of determining 

the consortium’s eligibility as a small 

business, very small business, or 

entrepreneur this information must be 

provided to ensure that each individual 

consortium member qualifies for any 

bidding credit awarded to the 

consortium. 

F. Tribal Lands Bidding Credit 

73. To encourage the growth of 

wireless services in federally recognized 

tribal lands, the Commission has 

implemented a tribal lands bidding 

credit. Applicants do not provide 

information regarding tribal lands 

bidding credits on their short-form 

applications. Instead, winning bidders 

may apply for the tribal lands bidding 

credit after the auction when they file 

their more detailed, long-form 

applications. 

G. Provisions Regarding Former and 

Current Defaulters 

74. Current defaulters are not eligible 

to participate in Auction 86, but former 

defaulters can participate so long as 

they are otherwise qualified and must 

make upfront payments that are fifty 

percent more than the normal upfront 

payment amounts. 

75. On the short-form application, an 

applicant must certify under penalty of 

perjury that it, its affiliates, its 

controlling interests, and the affiliates of 

its controlling interests, as defined by 47 

CFR 1.2110, are not in default on any 

payments for Commission licenses 

(including down payments) and that it 

is not delinquent on any non-tax debt 

owed to any Federal agency. Each 

applicant must also state under penalty 

of perjury whether or not it, its affiliates, 

its controlling interests, and the 

affiliates of its controlling interests, 

have ever been in default on any 

Commission licenses or have ever been 

delinquent on any non-tax debt owed to 

any Federal agency. Prospective 

applicants are reminded that 

submission of a false certification to the 

Commission is a serious matter that may 

result in severe penalties, including 

monetary forfeitures, license 

revocations, exclusion from 

participation in future auctions, and/or 

criminal prosecution. These statements 

and certifications are prerequisites to 

submitting an application to participate 

in an FCC auction. 

76. Applicants are encouraged to 

review the Bureau’s previous guidance 

on default and delinquency disclosure 

requirements in the context of the shortform application process. For example, 

it has been determined that to the extent 

that Commission rules permit late 

payment of regulatory or application 

fees accompanied by late fees, such 

debts will become delinquent for 

purposes of 47 CFR 1.2105(a) and 

1.2106(a) only after the expiration of a 

final payment deadline. Therefore, with 

respect to regulatory or application fees, 

the provisions of 47 CFR 1.2105(a) and 

1.2106(a) regarding default and 

delinquency in connection with 

competitive bidding are limited to 

circumstances in which the relevant 

party has not complied with a final 

Commission payment deadline. Parties 

are also encouraged to coordinate with 

the Commission’s Office of Managing 

Director or the Bureau’s Auctions and 

Spectrum Access Division staff if they 

have any questions about default and 

delinquency disclosure requirements. 

77. The Commission considers 

outstanding debts owed to the United 

States Government, in any amount, to be 

a serious matter. The Commission 

adopted rules, including a provision 

referred to as the red light rule, that 

implement the Commission’s 

obligations under the Debt Collection 

Improvement Act of 1996, which 

governs the collection of claims owed to 

the United States. Under the red light 

rule, the Commission will not process 

applications and other requests for 

benefits filed by parties that have 

outstanding debts owed to the 

Commission. In the same rulemaking 

order, the Commission explicitly 

declared, however, that the 

Commission’s competitive bidding rules 

are not affected by the red light rule. As 

a consequence, the Commission’s 

adoption of the red light rule does not 

alter the applicability of any of the 

Commission’s competitive bidding 

rules, including the provisions and 

certifications of 47 CFR 1.2105 and 

1.2106, with regard to current and 

former defaults or delinquencies. 

78. Applicants are reminded, 

however, that the Commission’s Red 

Light Display System, which provides 

information regarding debts owed to the 

Commission, may not be determinative 

of an auction applicant’s ability to 

comply with the default and 

delinquency disclosure requirements of 

47 CFR 1.2105. Thus, while the red light 

rule ultimately may prevent the 

processing of long-form applications by 

auction winners, an auction applicant’s 

red light status is not necessarily 

determinative of its eligibility to 

participate in an auction or of its 

upfront payment obligation. 


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H. Minor Modifications to Short-Form 

Applications 

79. Applicants are not permitted to 

make major modifications to their shortform applications (e.g., change their 

license selections, change control of the 

applicant, change the certifying official, 

or change their size to claim eligibility 

for a higher bidding credit) after the 

short-form application deadline. Thus, 

any change in control of an applicant, 

resulting from a merger for example, 

will be considered a major modification 

to the applicant’s short-form 

application, which will consequently be 

dismissed. 

80. Applicants are, however, 

permitted to make minor changes to 

their short-form applications after the 

filing deadline. Permissible minor 

changes include, for example, deletion 

and addition of authorized bidders (to a 

maximum of three) and revision of 

addresses and telephone numbers of the 

applicants and their contact persons. 

I. Maintaining Current Information in 

Short-Form Applications 

81. 47 CFR 1.65 requires an applicant 

to maintain the accuracy and 

completeness of information furnished 

in its pending application and to notify 

the Commission within 30 days of any 

substantial change that may be of 

decisional significance to that 

application. Changes that cause a loss of 

or reduction in eligibility for a bidding 

credit must be reported immediately. If 

an amendment reporting substantial 

changes is a major amendment, as 

defined by 47 CFR 1.2105, the major 

amendment will not be accepted and 

may result in the dismissal of the shortform application. 

82. After the short-form filing 

deadline, applicants may make only 

minor changes to their short-form 

applications. Applicants must click on 

the SUBMIT button in the FCC Auction 

System for the changes to be submitted 

and considered by the Commission. In 

addition, applicants must submit a 

letter, briefly summarizing the changes, 

by e-mail at the following address: 

auction86@fcc.gov. The e-mail 

summarizing the changes must include 

a subject or caption referring to Auction 

86 and the name of the applicant. The 

Bureau requests that parties format any 

attachments to e-mail as Adobe®

Acrobat® (pdf) or Microsoft® Word 

documents. Applicants must not submit 

application-specific material through 

ECFS. A party seeking to submit 

information that might reflect nonpublic information, such as an 

applicant’s license selections, upfront 

payment amount or bidding eligibility, 

should consider submitting any such 

information along with a request that 

the filing or portions of the filing be 

withheld from public inspection until 

the end of the anti-collusion period. 

III. Pre-Auction Procedures 

A. Auction Seminar—August 5, 2009 

83. On Wednesday, August 5, 2009, 

the Commission will conduct a seminar 

for parties interested in participating in 

Auction 86 at FCC headquarters, located 

at 445 12th Street, SW., Washington, 

DC. The seminar will provide attendees 

with information about pre-auction 

procedures, completing short-form 

applications, auction conduct, the FCC 

Auction System, auction rules, and 

Broadband Radio Service rules. The 

seminar will also provide an 

opportunity for prospective bidders to 

ask questions of FCC staff concerning 

the auction, auction procedures, filing 

requirements, and other matters related 

to this auction. To register, see 

Attachment G of the Auction 86 

Procedures Public Notice. 

B. Short-Form Applications—Due Prior 

to 6 p.m. ET on August 18, 2009 

84. In order to be eligible to bid in this 

auction, applicants must first follow the 

procedures set forth in Attachment C of 

the Auction 86 Procedures Public Notice 

to submit a short-form application (FCC 

Form 175) electronically via the FCC 

Auction System. This application must 

be received at the Commission prior to 

6:00 p.m. ET on August 18, 2009. Late 

applications will not be accepted. 

C. Application Processing and Minor 

Corrections 

85. After the deadline for filing shortform applications, the Commission will 

process all timely submitted 

applications to determine which are 

complete, and subsequently will issue a 

public notice identifying (1) Those 

applications that are complete, (2) those 

applications that are rejected, and (3) 

those applications that are incomplete 

because of minor defects that may be 

corrected. The public notice will 

include the deadline for resubmitting 

corrected applications. 

86. After the August 18, 2009, shortform filing deadline, applicants may 

make only minor corrections to their 

applications. Applicants will not be 

permitted to make major modifications 

to their applications (e.g., change their 

license selections, change control of the 

applicant, change certifying official, or 

change their size to claim eligibility for 

a higher bidding credit). 

87. Applicants should be aware the 

Commission staff will communicate 

only with an applicant’s contact person 

or certifying official, as designated on 

the applicant’s short-form application, 

unless the applicant’s certifying official 

or contact person notifies the 

Commission in writing that applicant’s 

counsel or other representative is 

authorized to speak on its behalf. 

Authorizations may be submitted by 

e-mail at the following address: 

auction86@fcc.gov. 

D. Upfront Payments—Due September 

24, 2009 

88. In order to be eligible to bid in this 

auction, applicants must submit an 

upfront payment accompanied by an 

FCC Remittance Advice Form (FCC 

Form 159). After completing its shortform application, an applicant will have 

access to an electronic version of FCC 

Form 159 that can be printed and sent 

by fax to U.S. Bank in St. Louis, 

Missouri. All upfront payments must be 

made as instructed in the Auction 86 

Procedures Public Notice and must be 

received in the proper account at U.S. 

Bank before 6 p.m. ET on September 24, 

2009. 

i. Making Upfront Payments by Wire 

Transfer 

89. Wire transfer payments must be 

received by 6 p.m. ET on September 24, 

2009. No other payment method is 

acceptable. To avoid untimely 

payments, applicants should discuss 

arrangements (including bank closing 

schedules) with their banker several 

days before they plan to make the wire 

transfer, and allow sufficient time for 

the transfer to be initiated and 

completed before the deadline. 

90. At least one hour before placing 

the order for the wire transfer (but on 

the same business day), applicants must 

fax a completed FCC Form 159 (Revised 

2/03) to U.S. Bank at (314) 418–4232. 

On the fax cover sheet, applicants 

should write Wire Transfer—Auction 

Payment for Auction 86. In order to 

meet the Commission’s upfront payment 

deadline, an applicant’s payment must 

be credited to the Commission’s account 

before the deadline. The applicant is 

responsible for obtaining confirmation 

from its financial institution that U.S. 

Bank has timely received its upfront 

payment and deposited it in the proper 

account. 

91. Please note that: (1) All payments 

must be made in U.S. dollars; (2) all 

payments must be made by wire 

transfer; (3) upfront payments for 

Auction 86 go to a lockbox number 

different from the lockboxes used in 

previous FCC auctions, and different 

from the lockbox number to be used for 

post-auction payments; and (4) failure to 


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deliver a sufficient upfront payment as 

instructed by the September 24, 2009, 

deadline will result in dismissal of the 

application and disqualification from 

participation in the auction 

ii. FCC Form 159 

92. A completed FCC Remittance 

Advice Form (FCC Form 159, Revised 

2/03) must be faxed to U.S. Bank to 

accompany each upfront payment. 

Proper completion of FCC Form 159 is 

critical to ensuring correct crediting of 

upfront payments. Detailed instructions 

for completion of FCC Form 159 are 

included in Attachment D of the 

Auction 86 Procedures Public Notice. 

An electronic pre-filled version of the 

FCC Form 159 is available after 

submitting the short-form application. 

Payors using the pre-filled FCC Form 

159 are responsible for ensuring that all 

of the information on the form, 

including payment amounts, is accurate. 

The FCC Form 159 can be completed 

electronically, but must be filed with 

U.S. Bank by fax. 

iii. Upfront Payments and Bidding 

Eligibility 

93. The Commission has delegated to 

the Bureau the authority and discretion 

to determine appropriate upfront 

payments for each auction. Upfront 

payments help deter frivolous or 

insincere bidding, and provide the 

Commission with a source of funds in 

the event that the bidder incurs liability 

during the auction. 

94. Applicants that are former 

defaulters must pay upfront payments 

50 percent greater than non-former 

defaulters. For purposes of this 

calculation, the applicant includes the 

applicant itself, its affiliates, its 

controlling interests, and affiliates of its 

controlling interests, as defined by 47 

CFR 1.2110. 

95. Applicants must make upfront 

payments sufficient to obtain bidding 

eligibility on the licenses on which they 

will bid. The Bureau proposed, in the 

Auction 86 Comment Public Notice, that 

the amount of the upfront payment 

would determine a bidder’s initial 

bidding eligibility, the maximum 

number of bidding units on which a 

bidder may place bids. Under the 

Bureau’s proposal, in order to bid on a 

particular license, a qualified bidder 

must have selected the license on its 

short-form application and must have a 

current eligibility level that meets or 

exceeds the number of bidding units 

assigned to that license. At a minimum, 

therefore, an applicant’s total upfront 

payment must be enough to establish 

eligibility to bid on at least one of the 

licenses selected on its short-form 

application, or else the applicant will 

not be eligible to participate in the 

auction. An applicant does not have to 

make an upfront payment to cover all 

licenses the applicant selected on its 

short-form application, but only enough 

to cover the maximum number of 

bidding units that are associated with 

licenses on which the bidder wishes to 

place bids and hold provisionally 

winning bids at any given time. 

96. The Bureau proposed to calculate 

upfront payments for Auction 86 on a 

license-by-license basis using the 

following formula based on bandwidth 

and license area population. 

97. Several commenters addressed the 

proposed upfront payment amounts as 

well as minimum opening bids for this 

auction. These commenters sought a 

downward adjustment of the formulas 

used to calculate upfront payments and 

minimum opening bids. Commenters 

offered two alternatives to the upfront 

payment amounts and minimum 

opening bids proposed in the Auction 

86 Comment Public Notice. The 

Commission received reply comments 

and an ex parte submission regarding 

the proposal. 

98. Upon careful consideration of the 

comments, reply comments, and ex 

parte submission, as well as the history 

of this particular service, the Bureau has 

decided to exercise its discretion to 

adjust upfront payments. In making this 

change, the Bureau recognizes the 

concerns expressed regarding relative 

incumbency of the licenses. The revised 

upfront payments are calculated on a 

license-by-license basis using formulas 

based on bandwidth, license area 

population, and the encumbrance data, 

as follows: 

Encumbrance $/MHz-pop 

0%–20% ................................... $0.0125 

21%–50% ................................. 0.0100 

51%–80% ................................. 0.0050 

above 80% ................................ 0.0025 

99. The results of the formulas are 

subject to the Bureaus standard 

rounding procedures and to a minimum 

of $5,000 per license, except for the 

licenses for BRS service areas in the 

Gulf of Mexico, for which the upfront 

payments will be $20,000 as originally 

proposed. The upfront payment and 

bidding units for each license are set 

forth in Attachment A. 

100. In calculating its upfront 

payment amount, an applicant should 

determine the maximum number of 

bidding units on which it may wish to 

be active (bid on or hold provisionally 

winning bids on) in any single round, 

and submit an upfront payment amount 

covering that number of bidding units. 

In order to make this calculation, an 

applicant should add together the 

upfront payments for all licenses on 

which it seeks to be active in any given 

round. Applicants that are former 

defaulters must calculate their upfront 

payment for all licenses by multiplying 

the number of bidding units on which 

they wish to be active by 1.5. In order 

to calculate the number of bidding units 

to assign to former defaulters, the 

Commission will divide the upfront 

payment received by 1.5 and round the 

result up to the nearest bidding unit. 

iv. Applicant’s Wire Transfer 

Information for Purposes of Refunds of 

Upfront Payments 

101. To ensure that refunds of upfront 

payments are processed in an 

expeditious manner, the Commission is 

requesting that all pertinent information 

be supplied. Applicants can provide the 

information electronically during the 

initial short-form application filing 

window after the form has been 

submitted. Applicants are reminded that 

information submitted as part of an FCC 

Form 175 will be available to the public; 

for that reason, wire transfer 

information should not be included in 

an FCC Form 175. For wire transfer 

instructions see Auction 86 Procedures 

Public Notice at paragraph 129. 

E. Auction Registration 

102. Approximately ten days before 

the auction, the Bureau will issue a 

public notice announcing all qualified 

bidders for the auction. Qualified 

bidders are those applicants with 

submitted short-form applications that 

are deemed complete and upfront 

payments that are sufficient to make 

them eligible to bid. 

103. All qualified bidders are 

automatically registered for the auction. 

Registration materials will be 

distributed prior to the auction by 

overnight mail. The mailing will be sent 

only to the contact person at the contact 

address listed in the short-form 

application and will include the 

SecurID® tokens that will be required to 

place bids, the Integrated Spectrum 

Auction System (ISAS) Bidder’s Guide, 

and the Auction Bidder Line phone 

number. 

104. Qualified bidders that do not 

receive this registration mailing will not 

be able to submit bids. Therefore, any 

qualified bidder that has not received 

this mailing by noon on Wednesday, 

October 21, 2009, should call (717) 338– 

2868. Receipt of this registration mailing 

is critical to participating in the auction, 

and each applicant is responsible for 


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ensuring it has received all of the 

registration material. 

105. Only a person who has been 

designated as an authorized bidder, the 

contact person, or the certifying official 

on the applicant’s short-form 

application may request replacement 

SecurID tokens. 

F. Remote Electronic Bidding 

106. The Commission will conduct 

this auction over the Internet, and 

telephonic bidding will be available as 

well. Only qualified bidders are 

permitted to bid. Each applicant should 

indicate its bidding preference— 

electronic or telephonic—on its shortform application. In either case, each 

authorized bidder must have its own 

SecurID® token, which the Commission 

will provide at no charge. Each 

applicant with one authorized bidder 

will be issued two SecurID® tokens, 

while applicants with two or three 

authorized bidders will be issued three 

tokens. For security purposes, the 

SecurID® tokens, the telephonic bidding 

telephone number, and the Integrated 

Spectrum Auction System (ISAS) 

Bidder’s Guide are only mailed to the 

contact person at the contact address 

listed on the short-form application. 

Each SecurID® token is tailored to a 

specific auction. SecurID® tokens issued 

for other auctions or obtained from a 

source other than the FCC will not work 

for Auction 86. 

G. Mock Auction—October 23, 2009 

107. All qualified bidders will be 

eligible to participate in a mock auction 

on Friday, October 23, 2009. The mock 

auction will enable applicants to 

become familiar with the FCC Auction 

System prior to the auction. 

Participation by all bidders is strongly 

recommended. Details will be 

announced by public notice. 

IV. Auction Event 

A. Auction Structure 

i. Simultaneous Multiple Round 

Auction 

108. The Bureau will auction all 

licenses in Auction 86 using the 

Commission’s standard simultaneous 

multi-round auction format. This type of 

auction offers every license for bid at 

the same time and consists of successive 

bidding rounds in which eligible 

bidders may place bids on individual 

licenses. A bidder may bid on, and 

potentially win, any number of licenses. 

Typically, bidding remains open on all 

licenses until bidding stops on every 

license. 

ii. Information Available to Bidders 

Before and During the Auction 

109. In the Auction 86 Comment 

Public Notice, the Bureau proposed to 

withhold, until after the close of 

bidding, public release of (1) Bidders’ 

license selections on their short-form 

applications (FCC Form 175), (2) the 

amounts of bidders’ upfront payments 

and bidding eligibility, and (3) 

information that may reveal the 

identities of bidders placing bids and 

taking other bidding-related actions. 

110. The Bureau adopts the limited 

information procedures proposed in the 

Auction 86 Comment Public Notice. 

Thus, after the conclusion of each 

round, the Bureau will disclose all 

relevant information about the bids 

placed and/or withdrawn except the 

identities of the bidders performing the 

actions and the net amounts of the bids 

placed or withdrawn. As in past 

auctions conducted with limited 

information procedures, the Bureau will 

indicate, for each license, the minimum 

acceptable bid amount for the next 

round and whether the license has a 

provisionally winning bid. After each 

round, the Bureau will also release, for 

each license, the number of bidders that 

placed a bid on the license. 

Furthermore, the Bureau will indicate 

whether any proactive waivers were 

submitted in each round, and the 

Bureau will release the stage transition 

percentage—the percentages of licenses 

(as measured in bidding units) on which 

there were new bids—for the round. In 

addition, bidders can log in to the FCC 

Auction System to see, after each round, 

whether their own bids are 

provisionally winning. The Bureau will 

provide descriptions and/or samples of 

publicly-available and bidder-specific 

(non-public) results files prior to the 

start of the auction. 

111. Other Issues. Information 

disclosure procedures established for 

this auction will not interfere with the 

administration of or compliance with 

the Commission’s anti-collusion rule. 47 

CFR Section 1.2105(c)(1) of the 

Commission’s rules provides that after 

the short-form application filing 

deadline, all applicants for licenses in 

any of the same geographic license areas 

are prohibited from disclosing to each 

other in any manner the substance of 

bids or bidding strategies until after the 

down payment deadline, subject to 

specified exceptions. 

112. In Auction 86, the Commission 

will not disclose information regarding 

license selection or the amounts of 

bidders’ upfront payments and bidding 

eligibility. As in the past, the 

Commission will disclose the other 

portions of applicants’ short-form 

applications through its online database, 

and certain application-based 

information through public notices. 

113. To assist applicants in 

identifying other parties subject to the 

anti-collusion rule, the Bureau will 

notify separately each applicant that has 

filed a short-form application to 

participate in a pending auction 

whether applicants in Auction 86 have 

applied for licenses in any of the same 

geographic areas as the applicant. 

Specifically, after the Bureau conducts 

its initial review of applications to 

participate in Auction 86, it will send to 

each applicant in Auction 86 a letter 

that lists the other applicants that have 

pending short-form applications for 

licenses in any of the same geographic 

areas. The list will identify the other 

applicants by name but will not list 

their license selections. As in past 

auctions, additional information 

regarding other applicants that is 

needed to comply with 47 CFR 

1.2105(c)—such as the identities of 

other applicants’ controlling interests 

and entities with a greater than ten 

percent ownership interest—will be 

available through the publicly 

accessible online short-form application 

database. 

114. When completing short-form 

applications, applicants should avoid 

any statements or disclosures that may 

violate the Commission’s anti-collusion 

rule, particularly in light of the 

Commission’s procedures regarding the 

availability of certain information in 

Auction 86. While applicants’ license 

selection will not be disclosed until 

after Auction 86 closes, the Commission 

will disclose other portions of shortform applications through its online 

database and public notices. 

Accordingly, applicants should avoid 

including any information in their 

short-form applications that might 

convey information regarding license 

selections. For example, applicants 

should avoid using applicant names that 

refer to licenses being offered, referring 

to certain licenses or markets in 

describing bidding agreements, or 

including any information in 

attachments that may otherwise disclose 

applicants’ license selections. 

115. If an applicant is found to have 

violated the Commission’s rules or 

antitrust laws in connection with its 

participation in the competitive bidding 

process, the applicant may be subject to 

various sanctions, including forfeiture 

of its upfront payment, down payment, 

or full bid amount and prohibition from 

participating in future auctions. 

116. The Bureau hereby warns 

applicants that the direct or indirect 


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communication to other applicants or 

the public disclosure of non-public 

information, (e.g., bid withdrawals, 

proactive waivers submitted, reductions 

in eligibility) could violate the 

Commission’s anonymous bidding 

procedures and the anti-collusion rule. 

To the extent an applicant believes that 

such a disclosure is required by law or 

regulation, including regulations issued 

by the Securities and Exchange 

Commission, the Bureau strongly urges 

that the applicant consult with the 

Commission before making such 

disclosure. 

iii. Eligibility and Activity Rules 

117. The Bureau will use upfront 

payments to determine initial eligibility 

for Auction 86. The amount of the 

upfront payment submitted by a bidder 

determines initial bidding eligibility, 

the maximum number of bidding units 

on which a bidder may be active. Each 

license is assigned a specific number of 

bidding units listed in Attachment A of 

the Auction 86 Procedures Public 

Notice. Bidding units for a given license 

do not change as prices rise during the 

auction. A bidder’s upfront payment is 

not attributed to specific licenses. 

Rather, a bidder may place bids on any 

of the licenses selected on its short-form 

application as long as the total number 

of bidding units associated with those 

licenses does not exceed its current 

eligibility. Eligibility cannot be 

increased during the auction; it can only 

remain the same or decrease. Thus, in 

calculating its upfront payment amount, 

an applicant must determine the 

maximum number of bidding units it 

may wish to bid on or hold 

provisionally winning bids on in any 

single round, and submit an upfront 

payment amount covering that total 

number of bidding units. At a 

minimum, an applicant’s upfront 

payment must cover the bidding units 

for at least one of the licenses it selected 

on its short-form application. The total 

upfront payment does not affect the 

total dollar amount a bidder may bid on 

any given license. 

118. In order to ensure that an auction 

closes within a reasonable period of 

time, an activity rule requires bidders to 

bid actively throughout the auction, 

rather than wait until late in the auction 

before participating. Bidders are 

required to be active on a specific 

minimum percentage of their current 

bidding eligibility during each round of 

the auction. 

119. A bidder’s activity level in a 

round is the sum of the bidding units 

associated with any licenses covered by 

new and provisionally winning bids. A 

bidder is considered active on a license 

in the current round if it is either the 

provisionally winning bidder at the end 

of the previous bidding round and does 

not withdraw the provisionally winning 

bid in the current round, or if it submits 

a bid in the current round. 

120. The minimum required activity 

is expressed as a percentage of the 

bidder’s current eligibility, and 

increases by stage as the auction 

progresses. Because these procedures 

have proven successful in maintaining 

the pace of previous auctions, the 

Commission adopts them for Auction 

86. Failure to maintain the requisite 

activity level will result in the use of an 

activity rule waiver, if any remain, or a 

reduction in the bidder’s eligibility, 

possibly curtailing or eliminating the 

bidder’s ability to place additional bids 

in the auction. 

iv. Auction Stages 

121. In the Auction 86 Comment 

Public Notice, the Bureau proposed to 

conduct the auction in two stages and 

employ an activity rule. Under the 

Bureau’s proposal a bidder desiring to 

maintain its current bidding eligibility 

would be required to be active on 

licenses representing at least 90 percent 

of its current bidding eligibility, during 

each round of Stage One, and at least 98 

percent of its current bidding eligibility 

in Stage Two. The Commission received 

no comments on this proposal. 

122. The Bureau has the discretion to 

further alter the activity requirements 

before and/or during the auction as 

circumstances warrant, and also has 

other mechanisms by which it may 

influence the speed of an auction. The 

Bureau finds that two stages for an 

activity requirement adequately 

balances the desire to conclude the 

auction quickly with giving sufficient 

time for bidders to consider the status 

of the bidding and to place bids. 

Therefore, the Bureau adopts the two 

stages. 

123. Stage One: During the first stage 

of the auction, a bidder desiring to 

maintain its current bidding eligibility 

will be required to be active on licenses 

representing at least 90 percent of its 

current bidding eligibility in each 

bidding round. Failure to maintain the 

required activity level will result in the 

use of an activity rule waiver or, if the 

bidder has no activity rule waivers 

remaining, a reduction in the bidder’s 

bidding eligibility in the next round. 

During Stage One, reduced eligibility for 

the next round will be calculated by 

multiplying the bidder’s current round 

activity (the sum of bidding units of the 

bidder’s provisionally winning bids and 

bids during the current round) by tenninths (10/9). 

124. Stage Two: During the second 

stage of the auction, a bidder desiring to 

maintain its current bidding eligibility 

is required to be active on 98 percent of 

its current bidding eligibility. Failure to 

maintain the required activity level will 

result in the use of an activity rule 

waiver or, if the bidder has no activity 

rule waivers remaining, a reduction in 

the bidder’s bidding eligibility in the 

next round. During Stage Two, reduced 

eligibility for the next round will be 

calculated by multiplying the bidder’s 

current round activity (the sum of 

bidding units of the bidder’s 

provisionally winning bids and bids 

during the current round) by fiftyfortyninths (50/49). 

Caution: Since activity requirements 

increase in Stage Two, bidders must carefully 

check their activity during the first round 

following a stage transition to ensure that 

they are meeting the increased activity 

requirement. This is especially critical for 

bidders that have provisionally winning bids 

and do not plan to submit new bids. In past 

auctions, some bidders have inadvertently 

lost bidding eligibility or used an activity 

rule waiver because they did not re-verify 

their activity status at stage transitions. 

Bidders may check their activity against the 

required activity level by logging into the 

FCC Auction System. 

125. Because the foregoing procedures 

have proven successful in maintaining 

the proper pace in previous auctions, 

the Bureau adopts them for Auction 86. 

v. Stage Transitions 

126. In the Auction 86 Comment 

Public Notice, the Bureau proposed that 

it would advance the auction to the next 

stage (i.e., from Stage One to Stage Two) 

after considering a variety of measures 

of auction activity, including, but not 

limited to, the percentages of licenses 

(as measured in bidding units) on which 

there are new bids, the number of new 

bids, and the increase in revenue. The 

Bureau further proposed that it would 

retain the discretion to change the 

activity requirements during the 

auction. For example, the Bureau could 

decide not to transition to Stage Two if 

it believes the auction is progressing 

satisfactorily under the Stage One 

activity requirement, or to transition to 

Stage Two with an activity requirement 

that is higher or lower than the 98 

percent. The Bureau proposed to alert 

bidders of stage advancements by 

announcement during the auction. The 

Bureau received no comments on this 

issue. 

127. The Bureau adopts its proposal 

for stage transitions. Thus, the auction 

will start in Stage One. The Bureau will 

regulate the pace of the auction by 

announcement. The Bureau retains the 


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discretion to transition the auction to 

Stage Two, to add an additional stage 

with a higher activity requirement, not 

to transition to Stage Two, and to 

transition to Stage Two with an activity 

requirement that is higher or lower than 

98 percent. This determination will be 

based on a variety of measures of 

auction activity, including, but not 

limited to, the number of new bids and 

the percentages of licenses (as measured 

in bidding units) on which there are 

new bids. 

vi. Activity Rule Waivers 

128. In the Auction 86 Comment 

Public Notice, the Bureau proposed that 

each bidder in the auction be provided 

with three activity rule waivers. The 

Bureau received no comments on this 

issue. 

129. Therefore, the Bureau adopts its 

proposal to provide bidders with three 

activity rule waivers. 

vii. Auction Stopping Rules 

130. For Auction 86, the Bureau 

proposed to employ a simultaneous 

stopping rule approach. A simultaneous 

stopping rule means that all licenses 

remain available for bidding until 

bidding closes simultaneously on all 

licenses. More specifically, bidding will 

close simultaneously on all licenses 

after the first round in which no bidder 

submits any new bids, applies a 

proactive waiver, or withdraws any 

provisionally winning bids. 

131. The Bureau also sought comment 

on alternative versions of the 

simultaneous stopping rule for Auction 

86: 

Option 1. The auction would close for 

all licenses after the first round in 

which no bidder applies a waiver, 

withdraws a provisionally winning bid, 

or places any new bids on any license 

on which it is not the provisionally 

winning bidder. Thus, absent any other 

bidding activity, a bidder placing a new 

bid on a license for which it is the 

provisionally winning bidder would not 

keep the auction open under this 

modified stopping rule. 

Option 2. The auction would end after 

a specified number of additional 

rounds. If the Bureau invokes this 

special stopping rule, it will accept bids 

in the specified final round(s) and the 

auction will close. 

Option 3. The auction would remain 

open even if no bidder places any new 

bids, applies a waiver, or withdraws any 

provisionally winning bids. In this 

event, the activity rule will apply as 

usual, and a bidder with insufficient 

activity will either lose bidding 

eligibility or use a waiver. 

132. The Bureau proposed to exercise 

these options only in circumstances 

such as where the auction is proceeding 

unusually slowly or quickly, where 

there is minimal overall bidding 

activity, or where it appears likely that 

the auction will not close within a 

reasonable period of time or will close 

prematurely. The Bureau noted that 

before exercising these options, it is 

likely to attempt to change the pace of 

the auction by, for example, changing 

the number of bidding rounds per day 

and/or changing minimum acceptable 

bids. The Bureau proposed to retain the 

discretion to exercise any of these 

options with or without prior 

announcement during the auction. The 

Bureau received no comment on these 

proposals, and the Bureau adopts them 

for Auction 86. 

viii. Auction Delay, Suspension, or 

Cancellation 

133. In the Auction 86 Comment 

Public Notice, the Bureau proposed that, 

by public notice or by announcement 

during the auction, it may delay, 

suspend, or cancel the auction in the 

event of natural disaster, technical 

obstacle, administrative or weather 

necessity, evidence of an auction 

security breach or unlawful bidding 

activity, or for any other reason that 

affects the fair and efficient conduct of 

competitive bidding. The Bureau 

received no comment on this issue. The 

Bureau adopts its proposed rules 

regarding auction delay, suspension or 

cancellation. 

B. Bidding Procedures 

i. Round Structure 

134. The initial schedule of bidding 

rounds will be announced in the public 

notice listing the qualified bidders, 

which is released approximately 10 

days before the start of the auction. Each 

bidding round is followed by the release 

of round results. Multiple bidding 

rounds may be conducted in a given 

day. Details regarding round results 

formats and locations will also be 

included in the qualified bidders public 

notice. 

135. The Bureau has discretion to 

change the bidding schedule in order to 

foster an auction pace that reasonably 

balances speed with the bidders’ need to 

study round results and adjust their 

bidding strategies. The Bureau may 

increase or decrease the amount of time 

for the bidding rounds, the amount of 

time between rounds, or the number of 

rounds per day, depending upon 

bidding activity and other factors. 

ii. Reserve Price and Minimum Opening 

Bids 

136. Section 309(j) of the 

Communications Act of 1934, as 

amended, calls upon the Commission to 

prescribe methods by which a 

reasonable reserve price will be required 

or a minimum opening bid established 

when applications for FCC licenses are 

subject to auction (i.e., because they are 

mutually exclusive), unless the 

Commission determines that a reserve 

price or minimum opening bid is not in 

the public interest. 

137. In the Auction 86 Comment 

Public Notice, the Bureau did not 

propose to establish a separate reserve 

price for the licenses to be offered in 

Auction 86. The Bureau, however, did 

propose to establish minimum opening 

bids for each license, reasoning that a 

minimum opening bid, which has been 

used on other auctions, is an effective 

bidding tool for accelerating the 

competitive bidding process. 

Specifically, for Auction 86, the Bureau 

proposed to calculate minimum opening 

bid amounts on a license-by-license 

basis using a formula based on 

bandwidth and license area population 

as follows: 

$0.01 * MHz * BTA population with a 

minimum of $20,000 per license 

138. The Bureau sought comment on 

this proposal and, in the alternative, on 

whether, consistent with Section 309(j), 

the public interest would be served by 

having no minimum opening bids. 

139. Several commenters sought a 

downward adjustment in the formula 

for calculating minimum opening bids 

(as well as the formula for upfront 

payments). Commenters offer two 

alternatives to the upfront payment 

amounts and minimum opening bids 

proposed in the Auction 86 Comment 

Public Notice. 

140. In the Auction 86 Comment 

Public Notice, the Bureau noted the 

presence of pre-existing BRS site-based 

incumbent licenses within some of the 

geographic areas available in Auction 

86. In its discussion of the proposed 

minimum opening bid amounts, the 

Bureau noted, it had not attempted to 

adjust minimum opening bid amounts 

for licenses based on precise levels of 

incumbency within particular 

geographic areas, and have instead 

proposed a formula intended to reflect 

overall incumbency levels within the 

BRS service areas being offered. 

141. Upon careful consideration of the 

comments, reply comments, and ex 

parte submission, as well as the history 

of this particular service, the Bureau has 

decided to exercise its discretion to 

adjust minimum opening bids. In 


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making this change, the Bureau 

recognizes the concerns expressed 

regarding relative incumbency of the 

licenses. The revised minimum opening 

bids are calculated on a license-bylicense basis using formulas based on 

bandwidth, license area population, and 

the encumbrance data submitted in the 

ex parte filing as follows: 

Encumbrance $/MHz-pop 

0%–20% ................................... 0.0125 

21%–50% ................................. 0.0100 

51%–80% ................................. 0.0050 

above 80% ................................ 0.0025 

142. The results of the formulas are 

subject to the Bureaus standard 

rounding procedures and to a minimum 

of $5,000 per license, except for the 

licenses for BRS service areas in the 

Gulf of Mexico, for which the minimum 

opening bids will be $20,000 as 

originally proposed. The specific 

minimum opening bid amounts for each 

license available in Auction 86 

calculated pursuant to the procedure 

described above are set forth in 

Attachment A of the Auction 86 

Procedures Public Notice. 

iii. Bid Amounts 

143. In the Auction 86 Comment 

Public Notice, the Bureau proposed that 

in each round, eligible bidders be able 

to place a bid on a given license using 

one or more pre-defined bid amounts. 

Under the proposal, the FCC Auction 

System interface will list the acceptable 

bid amounts for each license. The 

Commission received no comment on 

this issue. Based on the Commission’s 

experience in prior auctions, we adopt 

the proposals for Auction 86. 

a. Minimum Acceptable Bids 

144. Under the Bureaus proposed 

procedures, the first of the acceptable 

bid amounts is called the minimum 

acceptable bid amount. The minimum 

acceptable bid amount for a license will 

be equal to its minimum opening bid 

amount until there is a provisionally 

winning bid on the license. After there 

is a provisionally winning bid for a 

license, the minimum acceptable bid 

amount for that license will be equal to 

the amount of the provisionally winning 

bid plus a percentage of that bid amount 

calculated using the formula. In general, 

the percentage will be higher for a 

license receiving many bids than for a 

license receiving few bids. In the case of 

a license for which the provisionally 

winning bid has been withdrawn, the 

minimum acceptable bid amount will 

equal the second highest bid received 

for the license. 

145. The percentage of the 

provisionally winning bid used to 

establish the minimum acceptable bid 

amount is calculated at the end of each 

round, based on an activity index. The 

activity index is a weighted average of 

(a) the number of bidders placing a bid 

on the license, and (b) the activity index 

from the prior round. Specifically, the 

activity index is equal to a weighting 

factor times the number of bidders 

placing a bid on the license in the most 

recent bidding round plus one minus 

the weighting factor times the activity 

index from the prior round. The 

additional percentage is determined as 

one plus the activity index times a 

minimum percentage amount, with the 

result not to exceed a maximum. The 

additional percentage is then multiplied 

by the provisionally winning bid 

amount to obtain the minimum 

acceptable bid for the next round. 

146. The Bureau proposed initially to 

set the weighting factor at 0.5, the 

minimum percentage (floor) at 0.1 

(10%), and the maximum percentage 

(ceiling) at 0.3 (30%). At these initial 

settings, the minimum acceptable bid 

for a license will generally be between 

ten percent and thirty percent higher 

than the provisionally winning bid, 

depending upon the bidding activity for 

the license. 

b. Additional Bid Amounts 

147. Any additional bid amounts are 

calculated using the minimum 

acceptable bid amount and a bid 

increment percentage—more 

specifically, by multiplying the 

minimum acceptable bid by one plus 

successively higher multiples of the bid 

increment percentage. If, for example, 

the bid increment percentage is five 

percent, the calculation of the first 

additional acceptable bid amount is 

(minimum acceptable bid amount) * (1 

+ 0.05), or (minimum acceptable bid 

amount) * 1.05; the second additional 

acceptable bid amount equals the 

minimum acceptable bid amount times 

one plus two times the bid increment 

percentage, or (minimum acceptable bid 

amount) * 1.1, etc. The Bureau will 

round the results of these calculations 

and the minimum acceptable bid 

calculations using the Bureau’s standard 

rounding procedures. 

148. For Auction 86, the Bureau 

proposed to set the bid increment 

percentage at 0.05, so that any 

additional bid amounts would increase 

by approximately 5 percent of the 

minimum acceptable bid. The Bureau 

received no comments on this proposal. 

Therefore, the Bureau adopts its 

proposal to begin the auction with a bid 

increment percentage of 0.05. 

149. The Bureau also sought comment 

on whether we should start Auction 86 

with eight additional bid amounts (for a 

total of nine bid amounts) or with fewer 

or no additional bid amounts per 

license. The Bureau received no 

comments on this proposal. The Bureau 

adopts its proposal, and Auction 86 will 

begin with eight additional bid amounts 

per license. 

150. The Bureau also sought comment 

on circumstances under which the 

Bureau should cap (a) the amount by 

which a minimum acceptable bid for a 

license may increase compared with the 

corresponding provisionally winning 

bid, and (b) the amount by which an 

additional bid amount may increase 

compared with the immediately 

preceding acceptable bid amount. No 

commenters addressed this question. 

151. The Bureau will start the auction 

without a cap on the dollar amount by 

which minimum acceptable bids and 

additional bid amounts may increase. 

The Bureau retains the discretion to 

impose a cap on bid amounts. 

152. The Bureau retains the discretion 

to change the minimum acceptable bid 

amounts, the additional bid amounts, 

the cap on bid amounts, the number of 

acceptable bid amounts, and the 

parameters of the formulas used to 

calculate minimum acceptable bid 

amounts and additional bid amounts if 

it determines that circumstances so 

dictate. Further, the Bureau retains the 

discretion to do so on a license-bylicense basis. 

iv. Provisionally Winning Bids 

153. At the end of each bidding 

round, a provisionally winning bid will 

be determined based on the highest bid 

amount received for each license. A 

provisionally winning bid will remain 

the provisionally winning bid until 

there is a higher bid on the same license 

at the close of a subsequent round. 

Provisionally winning bids at the end of 

the auction become the winning bids. 

Bidders are reminded that provisionally 

winning bids count toward activity for 

purposes of the activity rule. 

154. In the Auction 86 Comment 

Public Notice, the Bureau proposed to 

use a random number generator to select 

a single provisionally winning bid in 

the event of identical high bid amounts 

being submitted on a license in a given 

round (i.e., tied bids). No comments 

were received on this proposal. Hence, 

the Bureau adopts the proposal. 

v. Bidding 

155. All bidding will take place 

remotely either through the FCC 

Auction System or by telephonic 

bidding. There will be no on-site 


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Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Notices 38031 

bidding during Auction 86. Please note 

that telephonic bid assistants are 

required to use a script when entering 

bids placed by telephone. Telephonic 

bidders are therefore reminded to allow 

sufficient time to bid by placing their 

calls well in advance of the close of a 

round. The length of a call to place a 

telephonic bid may vary; please allow a 

minimum of ten minutes. 

156. A bidder’s ability to bid on 

specific licenses is determined by two 

factors: (1) the licenses selected on the 

bidder’s FCC Form 175 and (2) the 

bidder’s eligibility. The bid submission 

screens will allow bidders to submit 

bids on only those licenses the bidder 

selected on its FCC Form 175. 

157. In order to access the bidding 

function of the FCC Auction System, 

bidders must be logged in during the 

bidding round using the passcode 

generated by the SecurID® token and a 

personal identification number created 

by the bidder. Bidders are strongly 

encouraged to print a round summary 

for each round after they have 

completed all of their activity for that 

round. 

158. In each round, eligible bidders 

will be able to place bids on a given 

license in one or more pre-defined bid 

amounts. For each license, the FCC 

Auction System will list the acceptable 

bid amounts in a drop-down box. 

Bidders use the drop-down box to select 

from among the acceptable bid amounts. 

The FCC Auction System also includes 

an upload function that allows bidders 

to upload text files containing bid 

information. 

159. Until a bid has been placed on 

a license, the minimum acceptable bid 

amount for that license will be equal to 

its minimum opening bid amount. Once 

there are bids on a license, minimum 

acceptable bids for a license will be 

determined. 

160. During a round, an eligible 

bidder may submit bids for as many 

licenses as it wishes (providing that it 

is eligible to bid), remove bids placed in 

the current bidding round, withdraw 

provisionally winning bids from 

previous rounds, or permanently reduce 

eligibility. If a bidder submits multiple 

bids for the same license in the same 

round—multiple bids on the exact same 

license, the system takes the last bid 

entered as that bidder’s bid for the 

round. Bidders should note that the 

bidding units associated with licenses 

for which the bidder has removed or 

withdrawn its bid do not count towards 

the bidder’s current activity. 

161. Finally, bidders are cautioned to 

select their bid amounts carefully 

because, as explained below, bidders 

that withdraw a provisionally winning 

bid from a previous round, even if the 

bid was mistakenly or erroneously 

made, are subject to bid withdrawal 

payments. 

vi. Bid Removal and Bid Withdrawal 

162. In the Auction 86 Comment 

Public Notice, the Commission 

proposed bid removal and bid 

withdrawal procedures. The Bureau 

sought comment on permitting a bidder 

to remove a bid before the close of the 

round in which the bid was placed. 

With respect to bid withdrawals, the 

Commission proposed limiting each 

bidder to withdrawals of provisionally 

winning bids on licenses in no more 

than one round during the course of the 

auction. The round in which 

withdrawals are used would be at each 

bidder’s discretion. 

163. The Bureau received no 

comments on this issue. Therefore, the 

Bureau adopts its proposal. 

164. Bid Removal. Before the close of 

a bidding round, a bidder has the option 

of removing any bids placed in that 

round. By using the remove bids 

function in the FCC Auction System, a 

bidder may effectively unsubmit any bid 

placed within that round. A bidder 

removing a bid placed in the same 

round is not subject to withdrawal 

payments. Removing a bid will affect a 

bidder’s activity for the round in which 

it is removed, i.e., a bid that is removed 

does not count toward bidding activity. 

165. Bid Withdrawal. Once a round 

closes, a bidder may no longer remove 

a bid. However, in a later round, a 

bidder may withdraw provisionally 

winning bids from previous rounds for 

licenses using the withdraw bids 

function in the FCC Auction System. A 

provisionally winning bidder that 

withdraws its provisionally winning bid 

from a previous round during the 

auction is subject to the bid withdrawal 

payments specified in Section 1.2104(g). 

Once a withdrawal is submitted during 

a round, that withdrawal cannot be 

unsubmitted even if the round has not 

yet ended. 

166. If a provisionally winning bid is 

withdrawn, the minimum acceptable 

bid amount will equal the amount of the 

second highest bid received for the 

license, which may be less than, or in 

the case of tied bids, equal to, the 

amount of the withdrawn bid. The 

Commission will serve as a placeholder 

provisionally winning bidder on the 

license until a new bid is submitted on 

that license. 

167. These procedures will permit 

bidder flexibility during the auction, 

and therefore the Bureau adopts them 

for Auction 86. 

168. Calculation of Bid Withdrawal 

Payment. Generally, the Commission 

imposes payments on bidders that 

withdraw high bids during the course of 

an auction. If a bidder withdraws its bid 

and there is no higher bid in the same 

or subsequent auction(s), the bidder that 

withdrew its bid is responsible for the 

difference between its withdrawn bid 

and the winning bid in the same or 

subsequent auction(s). If there are 

multiple bid withdrawals on a single 

license and no subsequent higher bid is 

placed and/or the license is not won in 

the same auction, the payment for each 

bid withdrawal will be calculated based 

on the sequence of bid withdrawals and 

the amounts withdrawn. No withdrawal 

payment will be assessed for a 

withdrawn bid if either the subsequent 

winning bid or any subsequent 

intervening withdrawn bid, in either the 

same or subsequent auction(s), equals or 

exceeds that withdrawn bid. Thus, a 

bidder that withdraws a bid will not be 

responsible for any final withdrawal 

payment if there is a subsequent higher 

bid in the same or subsequent 

auction(s). 

169. 47 CFR 1.2104(g)(1) of the rules 

sets forth the payment obligations of a 

bidder that withdraws a provisionally 

winning bid on a license during the 

course of an auction, and provides for 

the assessment of interim bid 

withdrawal payments. In the Auction 86 

Comment Public Notice, the Bureau 

proposed to establish the percentage at 

15% for Auction 86 and sought 

comment on the proposal. 

170. The Bureau received no 

comments on this issue and adopts its 

proposal. The Commission will assess 

an interim withdrawal payment equal to 

15% of the amount of the withdrawn 

bids. The 15% interim payment will be 

applied toward any final bid withdrawal 

payment that will be assessed after 

subsequent auction of the license. 

Assessing an interim bid withdrawal 

payment ensures that the Commission 

receives a minimal withdrawal payment 

pending assessment of any final 

withdrawal payment. Section 1.2104(g) 

provides specific examples showing 

application of the bid withdrawal 

payment rule. 

vii. Round Results 

171. Limited information about the 

results of a round will be made public 

after the conclusion of the round. 

Specifically, after a round closes, the 

Bureau will make available for each 

license, its current provisionally 

winning bid amount, the minimum 

acceptable bid amount for the following 

round, the amounts of all bids placed on 

the license during the round, and 


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38032 Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Notices 

whether the license is FCC held. The 

system will also provide an entire 

license history detailing all activity that 

has taken place on a license with the 

ability to sort by round number. The 

reports will be publicly accessible. 

Moreover, after the auction, the Bureau 

will make available complete reports of 

all bids placed during each round of the 

auction, including bidder identities. 

viii. Auction Announcements 

172. The Commission will use auction 

announcements to announce items such 

as schedule changes and stage 

transitions. All auction announcements 

will be available by clicking a link in 

the FCC Auction System. 

V. Post-Auction Procedures 

173. Shortly after bidding has ended, 

the Commission will issue a public 

notice declaring the auction closed, 

identifying the winning bidders, and 

establishing the deadlines for 

submitting down payments, long-form 

applications, final payments, and 

ownership disclosure information 

reports. 

A. Down Payments 

174. Within ten business days after 

release of the auction closing notice, 

each winning bidder must submit 

sufficient funds (in addition to its 

upfront payment) to bring its total 

amount of money on deposit with the 

Commission for Auction 86 to 20 

percent of the net amount of its winning 

bids (gross bids less any applicable 

entrepreneur, small business or very 

small business bidding credits). 

B. Final Payments 

175. Each winning bidder will be 

required to submit the balance of the net 

amount of its winning bids within 10 

business days after the applicable 

deadline for submitting down payments. 

C. Long-Form Application (FCC Form 

601) 

176. Within ten business days after 

release of the auction closing notice, 

winning bidders must electronically 

submit a properly completed long-form 

application (FCC Form 601) for the 

license(s) they won through Auction 86. 

Winning bidders claiming eligibility for 

a small business, very small business, or 

entrepreneur bidding credit must 

demonstrate their eligibility for the 

bidding credit. Further filing 

instructions will be provided to winning 

bidders in the auction closing notice. 

177. Winning bidders organized as 

bidding consortia must comply with the 

long-form application procedures 

established in the CSEA/Part 1 Report 

and Order 71 FR 6992, February 10, 

2006. Specifically, each member (or 

group of members) of a winning 

consortium seeking separate licenses 

will be required to file a separate longform application for its respective 

license(s). If the license is to be 

partitioned or disaggregated, the 

member (or group) filing the long-form 

application must provide the relevant 

partitioning or disaggregation agreement 

in its long-form application. In addition, 

if two or more consortium members 

wish to be licensed together, they must 

first form a legal business entity, and 

any such entity must meet the 

applicable designated entity criteria. 

D. Ownership Disclosure Information 

Report (FCC Form 602) 

178. Within ten business days after 

release of the auction closing notice, 

each winning bidder must also comply 

with the ownership reporting 

requirements in 47 CFR 1.913, 1.919, 

and 1.2112 of the Commission’s rules by 

submitting an ownership disclosure 

information report (FCC Form 602) with 

its long-form application. 

179. If an applicant already has a 

complete and accurate FCC Form 602 on 

file in ULS, it is not necessary to file a 

new report, but applicants must verify 

that the information on file with the 

Commission is complete and accurate. If 

the applicant does not have an FCC 

Form 602 on file, or if it is not complete 

and accurate, the applicant must submit 

one. 

180. When an applicant submits a 

short-form application, ULS 

automatically creates an ownership 

record. This record is not an FCC Form 

602, but may be used to pre-fill the FCC 

Form 602 with the ownership 

information submitted on the 

applicant’s short-form application. 

Applicants must review the pre-filled 

information and confirm that it is 

complete and accurate as of the filing 

date of the long-form application before 

certifying and submitting the FCC Form 

602. Further instructions will be 

provided to winning bidders in the 

auction closing notice. 

E. Tribal Lands Bidding Credit 

181. A winning bidder that intends to 

use its license(s) to deploy facilities and 

provide services to federally recognized 

tribal lands that are unserved by any 

telecommunications carrier or that have 

a wireline penetration rate equal to or 

below 85 percent is eligible to receive a 

tribal lands bidding credit as set forth in 

47 CFR 1.2107 and 1.2110(f). A tribal 

lands bidding credit is in addition to, 

and separate from, any other bidding 

credit for which a winning bidder may 

qualify. 

182. Unlike other bidding credits that 

are requested prior to the auction, a 

winning bidder applies for the tribal 

lands bidding credit after winning the 

auction when it files its long-form 

application (FCC Form 601). When 

initially filing the long-form application, 

the winning bidder will be required to 

advise the Commission whether it 

intends to seek a tribal lands bidding 

credit, for each license won in the 

auction, by checking the designated 

box(es). After stating its intent to seek a 

tribal lands bidding credit, the applicant 

will have 180 days from the close of the 

long-form filing window to amend its 

application to select the specific tribal 

lands to be served and provide the 

required tribal government 

certifications. Licensees receiving a 

tribal lands bidding credit are subject to 

performance criteria as set forth in 47 

CFR 1.2110(f)(3)(vii). 

F. Default and Disqualification 

183. Any winning bidder that defaults 

or is disqualified after the close of the 

auction (i.e., fails to remit the required 

down payment within the prescribed 

period of time, fails to submit a timely 

long-form application, fails to make full 

payment, or is otherwise disqualified) 

will be subject to the payments 

described in 47 CFR 1.2104(g)(2). The 

payments include both a deficiency 

payment, equal to the difference 

between the amount of the bidder’s bid 

and the amount of the winning bid the 

next time a license covering the same 

spectrum is won in an auction, plus an 

additional payment equal to a 

percentage of the defaulter’s bid or of 

the subsequent winning bid, whichever 

is less. 

184. The percentage of the applicable 

bid to be assessed as an additional 

payment for defaults in a particular 

auction is established in advance of the 

auction. Accordingly, in the Auction 86 

Comment Public Notice, the Bureau 

proposed to set the additional default 

payment for this auction at fifteen 

percent of the applicable bid. The 

Bureau received no comments on this 

proposal and therefore adopts the 

proposal. 

185. Finally, in the event of a default, 

the Commission may re-auction the 

license or offer it to the next highest 

bidder (in descending order) at its final 

bid amount. In addition, if a default or 

disqualification involves gross 

misconduct, misrepresentation, or bad 

faith by an applicant, the Commission 

may declare the applicant and its 

principals ineligible to bid in future 

auctions, and may take any other action 


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Federal Register / Vol. 74, No. 145 / Thursday, July 30, 2009 / Notices 38033 

that it deems necessary, including 

institution of proceedings to revoke any 

existing licenses held by the applicant. 

G. Refund of Remaining Upfront 

Payment Balance 

186. After the auction, applicants that 

are not winning bidders or are winning 

bidders whose upfront payment 

exceeded the total net amount of their 

winning bids may be entitled to a 

refund of some or all of their upfront 

payment. All refunds will be returned to 

the payer of record, as identified on the 

FCC Form 159, unless the payor submits 

written authorization instructing 

otherwise. Bidders should not request a 

refund of their upfront payments before 

the Commission releases a public notice 

declaring the auction closed, identifying 

the winning bidders, and establishing 

the deadlines for submitting down 

payments, long-form applications, and 

final payments. 

Federal Communications Commission. 

Gary D. Michaels, 

Deputy Chief, Auctions and Spectrum Access 

Division, WTB. 

[FR Doc. E9–18198 Filed 7–29–09; 8:45 am] 

BILLING CODE 6712–01–P 

GENERAL SERVICES 

ADMINISTRATION 

[OMB Control No. 3090–0044] 

Public Buildings Service; Submission 

for OMB Review; GSA Form 3453, 

Application/Permit for Use of Space in 

Public Buildings and Grounds 

AGENCY: Public Buildings Service, GSA. 

ACTION: Notice of request for comments 

regarding a renewal to an existing OMB 

clearance. 

SUMMARY: Under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. Chapter 35), the General Services 

Administration will be submitting to the 

Office of Management and Budget 

(OMB) a request to review and approve 

a renewal of a currently approved 

information collection requirement 

regarding GSA Form 3453, Application/ 

Permit for Use of Space in Public 

Buildings and Grounds. A request for 

public comments was published at 74 

FR 19094, April 27, 2009. No comments 

were received. 

Public comments are particularly 

invited on: Whether this collection of 

information is necessary and whether it 

will have practical utility; whether our 

estimate of the public burden of this 

collection of information is accurate, 

and based on valid assumptions and 

methodology; ways to enhance the 

quality, utility, and clarity of the 

information to be collected. 

DATES: Submit comments on or before: 

August 31, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Frank Giblin, Public Buildings Service, 

at telephone (202) 501–1856, or via email to frank.giblin@gsa.gov. 

ADDRESSES: Submit comments regarding 

this burden estimate or any other aspect 

of this collection of information, 

including suggestions for reducing this 

burden to GSA Desk Officer, OMB, 

Room 10236, NEOB, Washington, DC 

20503, and a copy to the Regulatory 

Secretariat (VPR), General Services 

Administration, 1800 F Street, NW., 

Room 4041, Washington, DC 20405. 

Please cite OMB Control No. 3090–0044, 

GSA Form 3453, Application/Permit for 

Use of Space in Public Buildings and 

Grounds, in all correspondence. 

SUPPLEMENTARY INFORMATION: 

A. Purpose 

The general public uses GSA Form 

3453, Application/Permit for Use of 

Space in Public Buildings and Grounds, 

to request the use of public space in 

Federal buildings and on Federal 

grounds for cultural, educational, or 

recreational activities. A copy, sample, 

or description of any material or item 

proposed for distribution or display 

must also accompany this request. 

B. Annual Reporting Burden 

Respondents: 8,000. 

Responses per Respondent: 1. 

Hours per Response: 0.05. 

Total Burden Hours: 400. 

Obtaining Copies of Proposals: 

Requesters may obtain a copy of the 

information collection documents from 

the General Services Administration, 

Regulatory Secretariat (VPR), 1800 F 

Street, NW., Room 4041, Washington, 

DC 20405, telephone (202) 501–4755. 

Please cite OMB Control No. 3090–0044, 

GSA Form 3453, Application/Permit for 

Use of Space in Public Buildings and 

Grounds, in all correspondence. 

Dated: July 21, 2009. 

Casey Coleman, 

Chief Information Officer. 

[FR Doc. E9–18129 Filed 7–29–09; 8:45 am] 

BILLING CODE 6820–34–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

[Docket No. FDA–2009–D–0324] 

International Conference on 

Harmonisation; Draft Guidance on E16 

Genomic Biomarkers Related to Drug 

Response: Context, Structure, and 

Format of Qualification Submissions; 

Availability 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Notice. 

SUMMARY: The Food and Drug 

Administration (FDA) is announcing the 

availability of a draft guidance entitled 

‘‘E16 Genomic Biomarkers Related to 

Drug Response: Context, Structure, and 

Format of Qualification Submissions.’’ 

The draft guidance was prepared under 

the auspices of the International 

Conference on Harmonisation of 

Technical Requirements for Registration 

of Pharmaceuticals for Human Use 

(ICH). The draft guidance describes 

recommendations regarding context, 

structure, and format of regulatory 

submissions for qualification of genomic 

biomarkers. The draft guidance is 

intended to foster consistency of 

applications across regions and facilitate 

joint discussions with and among 

regulatory authorities. 

DATES: Although you can comment on 

any guidance at any time (see 21 CFR 

10.115(g)(5)), to ensure that the agency 

considers your comment on this draft 

guidance before it begins work on the 

final version of the guidance, submit 

written or electronic comments on the 

draft guidance by September 28, 2009. 

ADDRESSES: Submit written requests for 

single copies of the draft guidance to the 

Division of Drug Information, Center for 

Drug Evaluation and Research, Food 

and Drug Administration, 10903 New 

Hampshire Ave., Bldg. 51, rm. 2201, 

Silver Spring, MD 20993–0002; or the 

Office of Communication, Outreach and 

Development (HFM–40), Center for 

Biologics Evaluation and Research 

(CBER), Food and Drug Administration, 

1401 Rockville Pike, Rockville, MD 

20852–1448. The guidance may also be 

obtained by mail by calling CBER at 1– 

800–835–4709 or 301–827–1800. Send 

two self-addressed adhesive labels to 

assist the office in processing your 

requests. Submit written comments on 

the draft guidance to the Division of 

Dockets Management (HFA–305), Food 

and Drug Administration, 5630 Fishers 

Lane, rm. 1061, Rockville, MD 20852. 

Submit electronic comments to http:// 


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