FCC 1.2105 Revised as of October 1, 2007
Goto Year:2006 |
2008
Sec. 1.2105 Bidding application and certification procedures; prohibition of
collusion.
Link to an amendment published at 72 FR 48843 , Aug. 24, 2007.
(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. Beginning January 1, 1999, 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 ( see, e.g., 47 CFR 22.902), 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:
(i) Identification of each license 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 Sec. 1.2112.
(iii) The identity of the person(s) authorized to make or withdraw a bid;
(iv) If the applicant applies as a designated entity pursuant to Sec. 1.2110, a
statement to that effect and a declaration, under penalty of perjury, that
the applicant is qualified as a designated entity under Sec. 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. The Commission will accept applications certifying that
a request for waiver or other relief from the requirements of section 310 is
pending;
(vi) Certification that the applicant is in compliance with the foreign
ownership provisions of section 310 of the Communications Act of 1934, as
amended;
(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) An exhibit, certified as truthful under penalty of perjury,
identifying all parties with whom the applicant has entered into
partnerships, joint ventures, consortia or other agreements, arrangements or
understandings of any kind relating to the licenses being auctioned,
including any such agreements relating to the post-auction market structure.
(ix) Certification under penalty of perjury that it has 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
pursuant to paragraph (a)(2)(viii) regarding the amount of their bids,
bidding strategies or the particular licenses on which they will or will not
bid.
(x) 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.
(xi) An attached statement made under penalty of perjury indicating whether
or not 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.
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)
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 dismissed with prejudice and the upfront payment, 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.
(c) Prohibition of collusion. (1) Except as provided in paragraphs (c)(2),
(c)(3), and (c)(4) of this section, after the short-form application filing
deadline, all applicants for licenses in any of the same geographic license
areas are prohibited from cooperating or collaborating with respect to,
discussing with each other, or disclosing to each other in any manner the
substance of their own, or each other's, or any other competing applicants'
bids or bidding strategies, or discussing or negotiating settlement
agreements, until after the down payment deadline, unless such applicants
are members of a bidding consortium or other joint bidding arrangement
identified on the bidder's short-form application pursuant to
Sec. 1.2105(a)(2)(viii).
(2) Applicants may modify their short-form applications to reflect formation
of consortia or changes in ownership at any time before or during an
auction, provided such changes do not result in a change in control of the
applicant, and provided that the parties forming consortia or entering into
ownership agreements have not applied for licenses in any of the same
geographic license areas. Such changes will not be considered major
modifications of the application.
(3) After the filing of short-form applications, applicants may make
agreements to bid jointly for licenses, provided the parties to the
agreement have not applied for licenses in any of the same geographic
license areas.
(4) After the filing of short-form applications, a holder of a
non-controlling attributable interest in an entity submitting a short-form
application may acquire an ownership interest in, form a consortium with, or
enter into a joint bidding arrangement with, other applicants for licenses
in the same geographic license area, provided that:
(i) The attributable interest holder certifies to the Commission that it has
not communicated and will not communicate with any party concerning the bids
or bidding strategies of more than one of the applicants in which it holds
an attributable interest, or with which it has a consortium or joint bidding
arrangement, and which have applied for licenses in the same geographic
license area(s); and
(ii) The arrangements do not result in any change in control of an
applicant; or
(iii) When an applicant has withdrawn from the auction, is no longer placing
bids and has no further eligibility, a holder of a non-controlling,
attributable interest in such an applicant may obtain an ownership interest
in or enter into a consortium with another applicant for a license in the
same geographic service area, provided that the attributable interest holder
certifies to the Commission that it did not communicate with the new
applicant prior to the date that the original applicant withdrew from the
auction.
(5) Applicants must modify their short-form applications to reflect any
changes in ownership or in membership of consortia or joint bidding
arrangements.
(6) Any applicant that makes or receives a communication of bids or bidding
strategies prohibited under paragraph (c)(1) of this section shall report
such communication in writing to the Commission immediately, and in no case
later than five business days after the communication occurs. Such reports
shall be filed with the Office of the Secretary, and a copy shall be sent to
the Chief of the Auctions and Spectrum Access Division, Wireless
Telecommunications Bureau.
(7) 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; 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.
[ 63 FR 2341 , Jan. 15, 1998, as amended at 63 FR 29958 , June 2, 1998; 63 FR 50799 , Sept. 23, 1998; 64 FR 59659 , Nov. 3, 1999; 65 FR 52345 , Aug. 29,
2000; 66 FR 54452 , Oct. 29, 2001; 71 FR 15619 , Mar. 29, 2006; 71 FR 26251 ,
May 4, 2006]
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