Goto Section: 1.2104 | 1.2106 | Table of Contents

FCC 1.2105
Revised as of October 29, 2020
Goto Year:2020 | 2022
  §  1.2105   Bidding application and certification procedures; prohibition of
certain communications.

   (a) Submission of Short-Form Application (FCC Form 175). In order to be
   eligible to bid, an applicant must timely submit a short-form
   application (FCC Form 175), together with any appropriate upfront
   payment set forth by Public Notice. All short-form applications must be
   filed electronically.

   (1) All short-form applications will be due:

   (i) On the date(s) specified by public notice; or

   (ii) In the case of application filing dates which occur automatically
   by operation of law, on a date specified by public notice after the
   Commission has reviewed the applications that have been filed on those
   dates and determined that mutual exclusivity exists.

   (2) The short-form application must contain the following information,
   and all information, statements, certifications and declarations
   submitted in the application shall be made under penalty of perjury:

   (i) Identification of each license, or category of licenses, on which
   the applicant wishes to bid.

   (ii)(A) The applicant's name, if the applicant is an individual. If the
   applicant is a corporation, then the short-form application will
   require the name and address of the corporate office and the name and
   title of an officer or director. If the applicant is a partnership,
   then the application will require the name, citizenship and address of
   all general partners, and, if a partner is not a natural person, then
   the name and title of a responsible person should be included as well.
   If the applicant is a trust, then the name and address of the trustee
   will be required. If the applicant is none of the above, then it must
   identify and describe itself and its principals or other responsible
   persons; and

   (B) Applicant ownership and other information, as set forth in § 1.2112.

   (iii) The identity of the person(s) authorized to make or withdraw a
   bid. No person may serve as an authorized bidder for more than one
   auction applicant;

   (iv) If the applicant applies as a designated entity, a certification
   that the applicant is qualified as a designated entity under § 1.2110.

   (v) Certification that the applicant is legally, technically,
   financially and otherwise qualified pursuant to section 308(b) of the
   Communications Act of 1934, as amended;

   (vi) Certification that the applicant is in compliance with the foreign
   ownership provisions of section 310 of the Communications Act of 1934,
   as amended. The Commission will accept applications certifying that a
   request for waiver or other relief from the requirements of section 310
   is pending;

   (vii) Certification that the applicant is and will, during the pendency
   of its application(s), remain in compliance with any service-specific
   qualifications applicable to the licenses on which the applicant
   intends to bid including, but not limited to, financial qualifications.
   The Commission may require certification in certain services that the
   applicant will, following grant of a license, come into compliance with
   certain service-specific rules, including, but not limited to,
   ownership eligibility limitations;

   (viii) Certification that the applicant has provided in its application
   a brief description of, and identified each party to, any partnerships,
   joint ventures, consortia or other agreements, arrangements or
   understandings of any kind relating to the licenses being auctioned,
   including any agreements that address or communicate directly or
   indirectly bids (including specific prices), bidding strategies
   (including the specific licenses on which to bid or not to bid), or the
   post-auction market structure, to which the applicant, or any party
   that controls as defined in paragraph (a)(4) of this section or is
   controlled by the applicant, is a party.

   (ix) Certification that the applicant (or any party that controls as
   defined in paragraph (a)(4) of this section or is controlled by the
   applicant) has not entered and will not enter into any partnerships,
   joint ventures, consortia or other agreements, arrangements, or
   understandings of any kind relating to the licenses being auctioned
   that address or communicate, directly or indirectly, bidding at auction
   (including specific prices to be bid) or bidding strategies (including
   the specific licenses on which to bid or not to bid), or post-auction
   market structure with: any other applicant (or any party that controls
   or is controlled by another applicant); with a nationwide provider that
   is not an applicant (or any party that controls or is controlled by
   such a nationwide provider); or, if the applicant is a nationwide
   provider, with any non-nationwide provider that is not an applicant (or
   with any party that controls or is controlled by such a non-nationwide
   provider), other than:

   (A) Agreements, arrangements, or understandings of any kind that are
   solely operational as defined under paragraph (a)(4) of this section;

   (B) Agreements, arrangements, or understandings of any kind to form
   consortia or joint ventures as defined under paragraph (a)(4) of this
   section;

   (C) Agreements, arrangements or understandings of any kind with respect
   to the transfer or assignment of licenses, provided that such
   agreements, arrangements or understandings do not both relate to the
   licenses at auction and address or communicate, directly or indirectly,
   bidding at auction (including specific prices to be bid), or bidding
   strategies (including the specific licenses on which to bid or not to
   bid), or post-auction market structure.

   (x) Certification that if applicant has an interest disclosed pursuant
   to § 1.2112(a)(1) through (6) with respect to more than one short-form
   application for an auction, it will implement internal controls that
   preclude any individual acting on behalf of the applicant as defined in
   paragraph (c)(5) of this section from possessing information about the
   bids or bidding strategies (including post-auction market structure),
   of more than one party submitting a short-form application or
   communicating such information with respect to a party submitting a
   short-form application to anyone possessing such information regarding
   another party submitting a short-form application.

   (xi) Certification that the applicant is not in default on any
   Commission licenses and that it is not delinquent on any non-tax debt
   owed to any Federal agency.

   (xii) A certification indicating whether the applicant has ever been in
   default on any Commission license or has ever been delinquent on any
   non-tax debt owed to any Federal agency. For purposes of this
   certification, an applicant may exclude from consideration as a former
   default any default on a Commission license or delinquency on a non-tax
   debt to any Federal agency that has been resolved and meets any of the
   following criteria:

   (A) The notice of the final payment deadline or delinquency was
   received more than seven years before the short-form application
   deadline;

   (B) The default or delinquency amounted to less than $100,000;

   (C) The default or delinquency was paid within two quarters (i.e., 6
   months) after receiving the notice of the final payment deadline or
   delinquency; or

   (D) The default or delinquency was the subject of a legal or
   arbitration proceeding that was cured upon resolution of the
   proceeding.

   (xiii) For auctions required to be conducted under Title VI of the
   Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96)
   or in which any spectrum usage rights for which licenses are being
   assigned were made available under 47 U.S.C. 309(j)(8)(G)(i),
   certification under penalty of perjury that the applicant and all of
   the person(s) disclosed under paragraph (a)(2)(ii) of this section are
   not person(s) who have been, for reasons of national security, barred
   by any agency of the Federal Government from bidding on a contract,
   participating in an auction, or receiving a grant. For the purposes of
   this certification, the term “person” means an individual, partnership,
   association, joint-stock company, trust, or corporation, and the term
   “reasons of national security” means matters relating to the national
   defense and foreign relations of the United States.

   (3) Limit on filing applications. In any auction, no individual or
   entity may file more than one short-form application or have a
   controlling interest in more than one short-form application. In the
   case of a consortium, each member of the consortium shall be considered
   to have a controlling interest in the consortium. In the event that
   applications for an auction are filed by applicants with overlapping
   controlling interests, pursuant to paragraph (b)(1)(ii) of this
   section, both applications will be deemed incomplete and only one such
   applicant may be deemed qualified to bid. This limit shall not apply to
   any qualifying rural wireless partnership and individual members of
   such partnerships. A qualifying rural wireless partnership for purposes
   of this exception is one that was established as a result of the
   cellular B block settlement process established by the Commission in CC
   Docket No. 85-388 in which no nationwide provider is a managing partner
   or a managing member of the management committee, and partnership
   interests have not materially changed as of the effective date of the
   Report and Order in WT Docket No. 14-170, FCC 15-80. A partnership
   member for purposes of this exception is a partner or
   successor-in-interest to a partner in a qualifying partnership that
   does not have day-to-day management responsibilities in the partnership
   and holds 25% or less ownership interest, and provides a certification
   in its short-form application that it will implement internal controls
   to insulate itself from the bidding process of the cellular partnership
   and any other members of the partnership, except that it may, prior to
   the deadline for resubmission of short-form applications, express to
   the partnership the maximum it is willing to spend as a partner.

   (4) Definitions. For purposes of the certifications required under
   paragraph (a)(2) of this section:

   (i) The term controlling interest includes individuals or entities with
   positive or negative de jure or de facto control of the applicant. De
   jure control includes holding 50 percent or more of the voting stock of
   a corporation or holding a general partnership interest in a
   partnership. Ownership interests that are held indirectly by any party
   through one or more intervening corporations may be determined by
   successive multiplication of the ownership percentages for each link in
   the vertical ownership chain and application of the relevant
   attribution benchmark to the resulting product, except that if the
   ownership percentage for an interest in any link in the chain meets or
   exceeds 50 percent or represents actual control, it may be treated as
   if it were a 100 percent interest. De facto control is determined on a
   case-by-case basis. Examples of de facto control include constituting
   or appointing 50 percent or more of the board of directors or
   management committee; having authority to appoint, promote, demote, and
   fire senior executives that control the day-to-day activities of the
   licensee; or playing an integral role in management decisions. In the
   case of a consortium, each member of the consortium shall be considered
   to have a controlling interest in the consortium.

   (ii) The term consortium means an entity formed to apply as a single
   applicant to bid at auction pursuant to an agreement by two or more
   separate and distinct legal entities that individually are eligible to
   claim the same designated entity benefits under § 1.2110, provided that
   no member of the consortium may be a nationwide provider;

   (iii) The term joint venture means a legally cognizable entity formed
   to apply as a single applicant to bid at auction pursuant to an
   agreement by two or more separate and distinct legal entities, provided
   that no member of the joint venture may be a nationwide provider;

   (iv) The term solely operational agreement means any agreement,
   arrangement, or understanding of any kind that addresses operational
   aspects of providing a mobile service, including but not limited to
   agreements for roaming, device acquisition, and spectrum leasing and
   other spectrum use arrangements, so long as the agreement does not both
   relate to the licenses at auction and address or communicate, directly
   or indirectly, bidding at auction (including specific prices to be bid)
   or bidding strategies (including the specific licenses on which to bid
   or not to bid), or post-auction market structure.

   Note to paragraph (a): The Commission may also request applicants to
   submit additional information for informational purposes to aid in its
   preparation of required reports to Congress.

   (b) Modification and Dismissal of Short-Form Application (FCC Form
   175). (1) (i) Any short-form application (FCC Form 175) that does not
   contain all of the certifications required pursuant to this section is
   unacceptable for filing and cannot be corrected subsequent to the
   applicable filing deadline. The application will be deemed incomplete,
   the applicant will not be found qualified to bid, and the upfront
   payment, if paid, will be returned.

   (ii) If:

   (A) An individual or entity submits multiple applications in a single
   auction; or

   (B) Entities commonly controlled by the same individual or same set of
   individuals submit applications for any set of licenses in the same or
   overlapping geographic areas in a single auction; then only one of such
   applications may be deemed complete, and the other such application(s)
   will be deemed incomplete, such applicants will not be found qualified
   to bid, and the associated upfront payment(s), if paid, will be
   returned.

   (2) The Commission will provide bidders a limited opportunity to cure
   defects specified herein (except for failure to sign the application
   and to make certifications) and to resubmit a corrected application.
   During the resubmission period for curing defects, a short-form
   application may be amended or modified to cure defects identified by
   the Commission or to make minor amendments or modifications. After the
   resubmission period has ended, a short-form application may be amended
   or modified to make minor changes or correct minor errors in the
   application. Major amendments cannot be made to a short-form
   application after the initial filing deadline. Major amendments include
   changes in ownership of the applicant that would constitute an
   assignment or transfer of control, changes in an applicant's size which
   would affect eligibility for designated entity provisions, and changes
   in the license service areas identified on the short-form application
   on which the applicant intends to bid. Minor amendments include, but
   are not limited to, the correction of typographical errors and other
   minor defects not identified as major. An application will be
   considered to be newly filed if it is amended by a major amendment and
   may not be resubmitted after applicable filing deadlines.

   (3) Applicants who fail to correct defects in their applications in a
   timely manner as specified by public notice will have their
   applications dismissed with no opportunity for resubmission.

   (4) Applicants shall have a continuing obligation to make any
   amendments or modifications that are necessary to maintain the accuracy
   and completeness of information furnished in pending applications. Such
   amendments or modifications shall be made as promptly as possible, and
   in no case more than five business days after applicants become aware
   of the need to make any amendment or modification, or five business
   days after the reportable event occurs, whichever is later. An
   applicant's obligation to make such amendments or modifications to a
   pending application continues until they are made.

   (c) Prohibition of certain communications. (1) After the short-form
   application filing deadline, all applicants are prohibited from
   cooperating or collaborating with respect to, communicating with or
   disclosing, to each other or any nationwide provider that is not an
   applicant, or, if the applicant is a nationwide provider, any
   non-nationwide provider that is not an applicant, in any manner the
   substance of their own, or each other's, or any other applicants' bids
   or bidding strategies (including post-auction market structure), or
   discussing or negotiating settlement agreements, until after the down
   payment deadline, unless such communications are within the scope of an
   agreement described in paragraphs (a)(2)(ix)(A) through (C) of this
   section that is disclosed pursuant to paragraph (a)(2)(viii) of this
   section.

   (2) Any party submitting a short-form application that has an interest
   disclosed pursuant to § 1.2112(a)(1) through (6) with respect to more
   than one short-form application for an auction must implement internal
   controls that preclude any individual acting on behalf of the applicant
   as defined for purposes of this paragraph from possessing information
   about the bids or bidding strategies of more than one party submitting
   a short-form or communicating such information with respect to a party
   submitting a short-form application to anyone possessing such
   information regarding another party submitting a short-form
   application. Implementation of such internal controls will not outweigh
   specific evidence that a prohibited communication has occurred, nor
   will it preclude the initiation of an investigation when warranted.

   (3) An applicant must modify its short-form application to reflect any
   changes in ownership or in membership of a consortium or a joint
   venture or agreements or understandings related to the licenses being
   auctioned.

   (4) A party that makes or receives a communication prohibited under
   paragraphs (c)(1) or (6) of this section shall report such
   communication in writing immediately, and in any case no later than
   five business days after the communication occurs. A party's obligation
   to make such a report continues until the report has been made. Such
   reports shall be filed as directed in public notices detailing
   procedures for the bidding that was the subject of the reported
   communication. If no public notice provides direction, the party making
   the report shall do so in writing to the Chief of the Auctions and
   Spectrum Access Division, Wireless Telecommunications Bureau, by the
   most expeditious means available, including electronic transmission
   such as email.

   (5) For purposes of this paragraph:

   (i) The term applicant shall include all controlling interests in the
   entity submitting a short-form application to participate in an auction
   (FCC Form 175), 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, and all officers and
   directors of that entity. In the case of a consortium, each member of
   the consortium shall be considered to have a controlling interest in
   the consortium; and

   (ii) The term bids or bidding strategies shall include capital calls or
   requests for additional funds in support of bids or bidding strategies.
   Example: Company A is an applicant in area 1. Company B and Company C
   each own 10 percent of Company A. Company D is an applicant in area 1,
   area 2, and area 3. Company C is an applicant in area 3. Without
   violating the Commission's Rules, Company B can enter into a consortium
   arrangement with Company D or acquire an ownership interest in Company
   D if Company B certifies either:

   (1) That it has communicated with and will communicate neither with
   Company A or anyone else concerning Company A's bids or bidding
   strategy, nor with Company C or anyone else concerning Company C's bids
   or bidding strategy, or

   (2) that it has not communicated with and will not communicate with
   Company D or anyone else concerning Company D's bids or bidding
   strategy.

   (6) Prohibition of certain communications for the broadcast television
   spectrum incentive auction conducted under section 6403 of the Middle
   Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96).

   (i) For the purposes of the prohibition described in paragraphs
   (c)(6)(ii) and (iii) of this section, the term forward auction
   applicant is defined the same as the term applicant is defined in
   paragraph (c)(5) of this section, and the terms full power broadcast
   television licensee and Class A broadcast television licensee are
   defined the same as those terms are defined in § 1.2205(a)(1).

   (ii) Except as provided in paragraph (c)(6)(iii) of this section, in
   the broadcast television spectrum incentive auction conducted under
   section 6403 of the Middle Class Tax Relief and Job Creation Act of
   2012 (Pub. L. 112-96), beginning on the short-form application filing
   deadline for the forward auction and until the results of the incentive
   auction are announced by public notice, all forward auction applicants
   are prohibited from communicating directly or indirectly any incentive
   auction applicant's bids or bidding strategies to any full power or
   Class A broadcast television licensee.

   (iii) The prohibition described in paragraph (c)(6)(ii) of this section
   does not apply to communications between a forward auction applicant
   and a full power or Class A broadcast television licensee if a
   controlling interest, director, officer, or holder of any 10 percent or
   greater ownership interest in the forward auction applicant, as of the
   deadline for submitting short-form applications to participate in the
   forward auction, is also a controlling interest, director, officer, or
   governing board member of the full power or Class A broadcast
   television licensee, as of the deadline for submitting applications to
   participate in the reverse auction.

   Note 1 to paragraph (c): For the purposes of paragraph (c),
   “controlling interests” include individuals or entities with positive
   or negative de jure or de facto control of the licensee. De jure
   control includes holding 50 percent or more of the voting stock of a
   corporation or holding a general partnership interest in a partnership.
   Ownership interests that are held indirectly by any party through one
   or more intervening corporations may be determined by successive
   multiplication of the ownership percentages for each link in the
   vertical ownership chain and application of the relevant attribution
   benchmark to the resulting product, except that if the ownership
   percentage for an interest in any link in the chain meets or exceeds 50
   percent or represents actual control, it may be treated as if it were a
   100 percent interest. De facto control is determined on a case-by-case
   basis. Examples of de facto control include constituting or appointing
   50 percent or more of the board of directors or management committee;
   having authority to appoint, promote, demote, and fire senior
   executives that control the day-to-day activities of the licensee; or
   playing an integral role in management decisions.

   Note 2 to paragraph (c): The prohibition described in paragraph
   (c)(6)(ii) of this section applies to controlling interests, directors,
   officers, and holders of any 10 percent or greater ownership interest
   in the forward auction applicant as of the deadline for submitting
   short-form applications to participate in the forward auction, and any
   additional such parties at any subsequent point prior to the
   announcement by public notice of the results of the incentive auction.
   Thus, if, for example, a forward auction applicant appoints a new
   officer after the short-form application deadline, that new officer
   would be subject to the prohibition in paragraph (c)(6)(ii) of this
   section, but would not be included within the exception described in
   paragraph (c)(6)(iii) of this section.

   [ 80 FR 56809 , Sept. 18, 2015]

   


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Goto Year: 2020 | 2022
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