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FCC 1.2110
Revised as of October 1, 2007
Goto Year:2006 |
2008
Sec. 1.2110 Designated entities.
(a) Designated entities are small businesses, businesses owned by members of
minority groups and/or women, and rural telephone companies.
(b) Eligibility for small business and entrepreneur provisions —(1) Size
attribution. (i) The gross revenues of the applicant (or licensee), its
affiliates, its controlling interests, the affiliates of its controlling
interests, and the entities with which it has an attributable material
relationship shall be attributed to the applicant (or licensee) and
considered on a cumulative basis and aggregated for purposes of determining
whether the applicant (or licensee) is eligible for status as a small
business, very small business, or entrepreneur, as those terms are defined
in the service-specific rules. An applicant seeking status as a small
business, very small business, or entrepreneur, as those terms are defined
in the service-specific rules, must disclose on its short- and long-form
applications, separately and in the aggregate, the gross revenues for each
of the previous three years of the applicant (or licensee), its affiliates,
its controlling interests, the affiliates of its controlling interests, and
the entities with which it has an attributable material relationship.
(ii) If applicable, pursuant to Sec. 24.709 of this chapter, the total assets of
the applicant (or licensee), its affiliates, its controlling interests, the
affiliates of its controlling interests, and the entities with which it has
an attributable material relationship shall be attributed to the applicant
(or licensee) and considered on a cumulative basis and aggregated for
purposes of determining whether the applicant (or licensee) is eligible for
status as an entrepreneur. An applicant seeking status as an entrepreneur
must disclose on its short- and long-form applications, separately and in
the aggregate, the gross revenues for each of the previous two years of the
applicant (or licensee), its affiliates, its controlling interests, the
affiliates of its controlling interests, and the entities with which it has
an attributable material relationship.
(2) Aggregation of affiliate interests. Persons or entities that hold
interests in an applicant (or licensee) that are affiliates of each other or
have an identity of interests identified in Sec. 1.2110(c)(5)(iii) will be
treated as though they were one person or entity and their ownership
interests aggregated for purposes of determining an applicant's (or
licensee's) compliance with the requirements of this section.
Example 1 to paragraph (b)(2): ABC Corp. is owned by individuals, A, B and
C, each having an equal one-third voting interest in ABC Corp. A and B
together, with two-thirds of the stock have the power to control ABC Corp.
and have an identity of interest. If A&B invest in DE Corp., a broadband PCS
applicant for block C, A and B's separate interests in DE Corp. must be
aggregated because A and B are to be treated as one person or entity.
Example 2 to paragraph (b)(2): ABC Corp. has subsidiary BC Corp., of which
it holds a controlling 51 percent of the stock. If ABC Corp. and BC Corp.,
both invest in DE Corp., their separate interests in DE Corp. must be
aggregated because ABC Corp. and BC Corp. are affiliates of each other.
(3) Exceptions. (i) Consortium . Where an applicant to participate in
bidding for Commission licenses or permits is a consortium either of
entities eligible for size-based bidding credits an/or for closed bidding
based on gross revenues and/or total assets, the gross revenues and/or total
assets of each consortium member shall not be aggregated. Each consortium
member must constitute a separate and distinct legal entity to qualify for
this exception. Consortia that are winning bidders using this exception must
comply with the requirements of Sec. 1.2107(g) of this chapter as a condition of
license grant.
(ii) Applicants without identifiable controlling interests. Where an
applicant (or licensee) cannot identify controlling interests under the
standards set forth in this section, the gross revenues of all interest
holders in the applicant, and their affiliates, will be attributable.
(iii) Rural telephone cooperatives. (A)( 1 ) An applicant will be exempt
from Sec. 1.2110(c)(2)(ii)(F) for the purpose of attribution in Sec. 1.2110(b)(1),
if the applicant or a controlling interest in the applicant, as the case may
be, meets all of the following conditions:
( i ) The applicant (or the controlling interest) is organized as a
cooperative pursuant to state law;
( ii ) The applicant (or the controlling interest) is a “rural telephone
company” as defined by the Communications Act; and
( iii ) The applicant (or the controlling interest) demonstrates either that
it is eligible for tax-exempt status under the Internal Revenue Code or that
it adheres to the cooperative principles articulated in Puget Sound Plywood,
Inc. v. Commissioner of Internal Revenue, 44 T.C. 305 (1965).
( 2 ) If the condition in paragraph (b)(3)(iii)(A)( 1 )( i ) above cannot be
met because the relevant jurisdiction has not enacted an organic statute
that specifies requirements for organization as a cooperative, the applicant
must show that it is validly organized and its articles of incorporation,
by-laws, and/or other relevant organic documents provide that it operates
pursuant to cooperative principles.
(B) However, if the applicant is not an eligible rural telephone cooperative
under paragraph (a) of this section, and the applicant has a controlling
interest other than the applicant's officers and directors or an eligible
rural telephone cooperative's officers and directors, paragraph (a) of this
section applies with respect to the applicant's officers and directors and
such controlling interest's officers and directors only when such
controlling interest is either:
( 1 ) An eligible rural telephone cooperative under paragraph (a) of this
section or
( 2 ) controlled by an eligible rural telephone cooperative under paragraph
(a) of this section.
(iv) Applicants or licensees with material relationships —(A) Impermissible
material relationships. An applicant or licensee that would otherwise be
eligible for designated entity benefits under this section and applicable
service-specific rules shall be ineligible for such benefits if the
applicant or licensee has an impermissible material relationship. An
applicant or licensee has an impermissible material relationship when it has
arrangements with one or more 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 one of the applicant's or licensee's
licenses.
(B) Attributable material relationships. An applicant or licensee must
attribute the gross revenues (and, if applicable, the total assets) of any
entity, (including the controlling interests, affiliates, and affiliates of
the controlling interests of that entity) with which the applicant or
licensee has an attributable material relationship. An applicant or licensee
has an attributable material relationship when it has one or more
arrangements 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 one of the applicant's or licensee's
licenses.
(C) Grandfathering —( 1 ) Licensees. An impermissible or attributable
material relationship shall not disqualify a licensee for previously awarded
benefits with respect to a license awarded before April 25, 2006, based on
spectrum lease or resale (including wholesale) arrangements entered into
before April 25, 2006.
( 2 ) Applicants. An impermissible or attributable material relationship
shall not disqualify an applicant seeking eligibility in an application for
a license, authorization, assignment, or transfer of control or for
partitioning or disaggregation filed before April 25, 2006, based on
spectrum lease or resale (including wholesale) arrangements entered into
before April 25, 2006. Any applicant seeking eligibility in an application
for a license, authorization, assignment, or transfer of control or for
partitioning or disaggregation filed after April 25, 2006, or in an
application to participate in an auction in which bidding begins on or after
June 5, 2006, need not attribute the material relationship(s) of those
entities that are its affiliates based solely on Sec. 1.2110(c)(5)(i)(C) if
those affiliates entered into such material relationship(s) before April 25,
2006, and are subject to a contractual prohibition preventing them from
contributing to the applicant's total financing.
Example to paragraph (b)(3)(iv)(C)(2): Newco is an applicant seeking
designated entity status in an auction in which bidding begins after the
effective date of the rules. Investor is a controlling interest of Newco.
Investor also is a controlling interest of Existing DE. Existing DE
previously was awarded designated entity benefits and has impermissible
material relationships based on leasing agreements entered into before April
25, 2006, with a third party, Lessee, that were in compliance with the
Commission's designated eligibility standards prior to April 25, 2006. In
this example, Newco would not be prohibited from acquiring designated entity
benefits solely because of the existing impermissible material relationships
of its affiliate, Existing DE. Newco, Investor, and Existing DE, however,
would need to enter into a contractual prohibition that prevents Existing DE
from contributing to the total financing of Newco.
(c) Definitions —(1) Small businesses. The Commission will establish the
definition of a small business on a service-specific basis, taking into
consideration the characteristics and capital requirements of the particular
service.
(2) Controlling interests. (i) For purposes of this section, controlling
interest includes individuals or entities with either de jure or de facto
control of the applicant. De jure control is evidenced by holdings of
greater than 50 percent of the voting stock of a corporation, or in the case
of a partnership, general partnership interests. De facto control is
determined on a case-by-case basis. An entity must disclose its equity
interest and demonstrate at least the following indicia of control to
establish that it retains de facto control of the applicant:
(A) The entity constitutes or appoints more than 50 percent of the board of
directors or management committee;
(B) The entity has authority to appoint, promote, demote, and fire senior
executives that control the day-to-day activities of the licensee; and
(C) The entity plays an integral role in management decisions.
(ii) Calculation of certain interests. (A) Fully diluted requirement. ( 1 )
Except as set forth in paragraph (c)(2)(ii)(A)( 2 ) of this section,
ownership interests shall be calculated on a fully diluted basis; all
agreements such as warrants, stock options and convertible debentures will
generally be treated as if the rights thereunder already have been fully
exercised.
( 2 ) Rights of first refusal and put options shall not be calculated on a
fully diluted basis for purposes of determining de jure control; however,
rights of first refusal and put options shall be calculated on a fully
diluted basis if such ownership interests, in combination with other terms
to an agreement, deprive an otherwise qualified applicant or licensee of de
facto control.
Note to paragraph(c)(2)(ii)(A): Mutually exclusive contingent ownership
interests, i.e., one or more ownership interests that, by their terms, are
mutually exclusive of one or more other ownership interests, shall be
calculated as having been fully exercised only in the possible combinations
in which they can be exercised by their holder(s). A contingent ownership
interest is mutually exclusive of another only if contractual language
specifies that both interests cannot be held simultaneously as present
ownership interests.
(B) Partnership and other ownership interests and any stock interest equity,
or outstanding stock, or outstanding voting stock shall be attributed as
specified.
(C) Stock interests held in trust shall be attributed to any person who
holds or shares the power to vote such stock, to any person who has the sole
power to sell such stock, and to any person who has the right to revoke the
trust at will or to replace the trustee at will. If the trustee has a
familial, personal, or extra-trust business relationship to the grantor or
the beneficiary, the grantor or beneficiary, as appropriate, will be
attributed with the stock interests held in trust.
(D) Non-voting stock shall be attributed as an interest in the issuing
entity.
(E) Limited partnership interests shall be attributed to limited partners
and shall be calculated according to both the percentage of equity paid in
and the percentage of distribution of profits and losses.
(F) Officers and directors of the applicant shall be considered to have a
controlling interest in the applicant. The officers and directors of an
entity that controls a licensee or applicant shall be considered to have a
controlling interest in the licensee or applicant. The personal net worth,
including personal income of the officers and directors of an applicant, is
not attributed to the applicant. To the extent that the officers and
directors of an applicant are affiliates of other entities, the gross
revenues of the other entities are attributed to the applicant.
(G) Ownership interests that are held indirectly by any party through one or
more intervening corporations will 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 exceeds 50 percent or represents actual control, it
shall be treated as if it were a 100 percent interest.
(H) Any person who manages the operations of an applicant or licensee
pursuant to a management agreement shall be considered to have a controlling
interest in such applicant or licensee if such person, or its affiliate, has
authority to make decisions or otherwise engage in practices or activities
that determine, or significantly influence:
( 1 ) The nature or types of services offered by such an applicant or
licensee;
( 2 ) The terms upon which such services are offered; or
( 3 ) The prices charged for such services.
(I) Any licensee or its affiliate who enters into a joint marketing
arrangement with an applicant or licensee, or its affiliate, shall be
considered to have a controlling interest, if such applicant or licensee, or
its affiliate, has authority to make decisions or otherwise engage in
practices or activities that determine, or significantly influence:
( 1 ) The nature or types of services offered by such an applicant or
licensee;
( 2 ) The terms upon which such services are offered; or
( 3 ) The prices charged for such services.
(3) Businesses owned by members of minority groups and/or women. Unless
otherwise provided in rules governing specific services, a business owned by
members of minority groups and/or women is one in which minorities and/or
women who are U.S. citizens control the applicant, have at least greater
than 50 percent equity ownership and, in the case of a corporate applicant,
have a greater than 50 percent voting interest. For applicants that are
partnerships, every general partner must be either a minority and/or woman
(or minorities and/or women) who are U.S. citizens and who individually or
together own at least 50 percent of the partnership equity, or an entity
that is 100 percent owned and controlled by minorities and/or women who are
U.S. citizens. The interests of minorities and women are to be calculated on
a fully diluted basis; agreements such as stock options and convertible
debentures shall be considered to have a present effect on the power to
control an entity and shall be treated as if the rights thereunder already
have been fully exercised. However, upon a demonstration that options or
conversion rights held by non-controlling principals will not deprive the
minority and female principals of a substantial financial stake in the
venture or impair their rights to control the designated entity, a
designated entity may seek a waiver of the requirement that the equity of
the minority and female principals must be calculated on a fully-diluted
basis. The term minority includes individuals of Black or African American,
Hispanic or Latino, American Indian or Alaskan Native, Asian, and Native
Hawaiian or Pacific Islander extraction.
(4) Rural telephone companies. A rural telephone company is any local
exchange carrier operating entity to the extent that such entity—
(i) Provides common carrier service to any local exchange carrier study area
that does not include either:
(A) Any incorporated place of 10,000 inhabitants or more, or any part
thereof, based on the most recently available population statistics of the
Bureau of the Census, or
(B) Any territory, incorporated or unincorporated, included in an urbanized
area, as defined by the Bureau of the Census as of August 10, 1993;
(ii) Provides telephone exchange service, including exchange access, to
fewer than 50,000 access lines;
(iii) Provides telephone exchange service to any local exchange carrier
study area with fewer than 100,000 access lines; or
(iv) Has less than 15 percent of its access lines in communities of more
than 50,000 on the date of enactment of the Telecommunications Act of 1996.
(5) Affiliate. (i) An individual or entity is an affiliate of an applicant
or of a person holding an attributable interest in an applicant if such
individual or entity—
(A) Directly or indirectly controls or has the power to control the
applicant, or
(B) Is directly or indirectly controlled by the applicant, or
(C) Is directly or indirectly controlled by a third party or parties that
also controls or has the power to control the applicant, or
(D) Has an “identity of interest” with the applicant.
(ii) Nature of control in determining affiliation.
(A) Every business concern is considered to have one or more parties who
directly or indirectly control or have the power to control it. Control may
be affirmative or negative and it is immaterial whether it is exercised so
long as the power to control exists.
Example. An applicant owning 50 percent of the voting stock of another
concern would have negative power to control such concern since such party
can block any action of the other stockholders. Also, the bylaws of a
corporation may permit a stockholder with less than 50 percent of the voting
stock to block any actions taken by the other stockholders in the other
entity. Affiliation exists when the applicant has the power to control a
concern while at the same time another person, or persons, are in control of
the concern at the will of the party or parties with the power to control.
(B) Control can arise through stock ownership; occupancy of director,
officer or key employee positions; contractual or other business relations;
or combinations of these and other factors. A key employee is an employee
who, because of his/her position in the concern, has a critical influence in
or substantive control over the operations or management of the concern.
(C) Control can arise through management positions where a concern's voting
stock is so widely distributed that no effective control can be established.
Example. In a corporation where the officers and directors own various
size blocks of stock totaling 40 percent of the corporation's voting stock,
but no officer or director has a block sufficient to give him or her control
or the power to control and the remaining 60 percent is widely distributed
with no individual stockholder having a stock interest greater than 10
percent, management has the power to control. If persons with such
management control of the other entity are persons with attributable
interests in the applicant, the other entity will be deemed an affiliate of
the applicant.
(iii) Identity of interest between and among persons. Affiliation can arise
between or among two or more persons with an identity of interest, such as
members of the same family or persons with common investments. In
determining if the applicant controls or has the power to control a concern,
persons with an identity of interest will be treated as though they were one
person.
Example. Two shareholders in Corporation Y each have attributable
interests in the same PCS application. While neither shareholder has enough
shares to individually control Corporation Y, together they have the power
to control Corporation Y. The two shareholders with these common investments
(or identity in interest) are treated as though they are one person and
Corporation Y would be deemed an affiliate of the applicant.
(A) Spousal affiliation. Both spouses are deemed to own or control or have
the power to control interests owned or controlled by either of them, unless
they are subject to a legal separation recognized by a court of competent
jurisdiction in the United States. In calculating their net worth, investors
who are legally separated must include their share of interests in property
held jointly with a spouse.
(B) Kinship affiliation. Immediate family members will be presumed to own or
control or have the power to control interests owned or controlled by other
immediate family members. In this context “immediate family member” means
father, mother, husband, wife, son, daughter, brother, sister, father- or
mother-in-law, son- or daughter-in-law, brother- or sister-in-law,
step-father or -mother, step-brother or -sister, step-son or -daughter, half
brother or sister. This presumption may be rebutted by showing that the
family members are estranged, the family ties are remote, or the family
members are not closely involved with each other in business matters.
Example. A owns a controlling interest in Corporation X. A's
sister-in-law, B, has an attributable interest in a PCS application. Because
A and B have a presumptive kinship affiliation, A's interest in Corporation
Y is attributable to B, and thus to the applicant, unless B rebuts the
presumption with the necessary showing.
(iv) Affiliation through stock ownership. (A) An applicant is presumed to
control or have the power to control a concern if he or she owns or controls
or has the power to control 50 percent or more of its voting stock.
(B) An applicant is presumed to control or have the power to control a
concern even though he or she owns, controls or has the power to control
less than 50 percent of the concern's voting stock, if the block of stock he
or she owns, controls or has the power to control is large as compared with
any other outstanding block of stock.
(C) If two or more persons each owns, controls or has the power to control
less than 50 percent of the voting stock of a concern, such minority
holdings are equal or approximately equal in size, and the aggregate of
these minority holdings is large as compared with any other stock holding,
the presumption arises that each one of these persons individually controls
or has the power to control the concern; however, such presumption may be
rebutted by a showing that such control or power to control, in fact, does
not exist.
(v) Affiliation arising under stock options, convertible debentures, and
agreements to merge. Except as set forth in paragraph (c)(2)(ii)(A)( 2 ) of
this section, stock options, convertible debentures, and agreements to merge
(including agreements in principle) are generally considered to have a
present effect on the power to control the concern. Therefore, in making a
size determination, such options, debentures, and agreements are generally
treated as though the rights held thereunder had been exercised. However, an
affiliate cannot use such options and debentures to appear to terminate its
control over another concern before it actually does so.
Example 1 to paragraph (c)(5)(v). If company B holds an option to purchase
a controlling interest in company A, who holds an attributable interest in a
PCS application, the situation is treated as though company B had exercised
its rights and had become owner of a controlling interest in company A. The
gross revenues of company B must be taken into account in determining the
size of the applicant.
Example 2. If a large company, BigCo, holds 70% (70 of 100 outstanding
shares) of the voting stock of company A, who holds an attributable interest
in a PCS application, and gives a third party, SmallCo, an option to
purchase 50 of the 70 shares owned by BigCo, BigCo will be deemed to be an
affiliate of company A, and thus the applicant, until SmallCo actually
exercises its option to purchase such shares. In order to prevent BigCo from
circumventing the intent of the rule which requires such options to be
considered on a fully diluted basis, the option is not considered to have
present effect in this case.
Example 3. If company A has entered into an agreement to merge with
company B in the future, the situation is treated as though the merger has
taken place.
Note to paragraph(c)(5)(v): Mutually exclusive contingent ownership
interests, i.e., one or more ownership interests that, by their terms, are
mutually exclusive of one or more other ownership interests, shall be
calculated as having been fully exercised only in the possible combinations
in which they can be exercised by their holder(s). A contingent ownership
interest is mutually exclusive of another only if contractual language
specifies that both interests cannot be held simultaneously as present
ownership interests.
(vi) Affiliation under voting trusts. (A) Stock interests held in trust
shall be deemed controlled by any person who holds or shares the power to
vote such stock, to any person who has the sole power to sell such stock,
and to any person who has the right to revoke the trust at will or to
replace the trustee at will.
(B) If a trustee has a familial, personal or extra-trust business
relationship to the grantor or the beneficiary, the stock interests held in
trust will be deemed controlled by the grantor or beneficiary, as
appropriate.
(C) If the primary purpose of a voting trust, or similar agreement, is to
separate voting power from beneficial ownership of voting stock for the
purpose of shifting control of or the power to control a concern in order
that such concern or another concern may meet the Commission's size
standards, such voting trust shall not be considered valid for this purpose
regardless of whether it is or is not recognized within the appropriate
jurisdiction.
(vii) Affiliation through common management. Affiliation generally arises
where officers, directors, or key employees serve as the majority or
otherwise as the controlling element of the board of directors and/or the
management of another entity.
(viii) Affiliation through common facilities. Affiliation generally arises
where one concern shares office space and/or employees and/or other
facilities with another concern, particularly where such concerns are in the
same or related industry or field of operations, or where such concerns were
formerly affiliated, and through these sharing arrangements one concern has
control, or potential control, of the other concern.
(ix) Affiliation through contractual relationships. Affiliation generally
arises where one concern is dependent upon another concern for contracts and
business to such a degree that one concern has control, or potential
control, of the other concern.
(x) Affiliation under joint venture arrangements. (A) A joint venture for
size determination purposes is an association of concerns and/or
individuals, with interests in any degree or proportion, formed by contract,
express or implied, to engage in and carry out a single, specific business
venture for joint profit for which purpose they combine their efforts,
property, money, skill and knowledge, but not on a continuing or permanent
basis for conducting business generally. The determination whether an entity
is a joint venture is based upon the facts of the business operation,
regardless of how the business operation may be designated by the parties
involved. An agreement to share profits/losses proportionate to each party's
contribution to the business operation is a significant factor in
determining whether the business operation is a joint venture.
(B) The parties to a joint venture are considered to be affiliated with each
other. Nothing in this subsection shall be construed to define a small
business consortium, for purposes of determining status as a designated
entity, as a joint venture under attribution standards provided in this
section.
(xi) Exclusion from affiliation coverage. For purposes of this section,
Indian tribes or Alaska Regional or Village Corporations organized pursuant
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq. ), or
entities owned and controlled by such tribes or corporations, are not
considered affiliates of an applicant (or licensee) that is owned and
controlled by such tribes, corporations or entities, and that otherwise
complies with the requirements of this section, except that gross revenues
derived from gaming activities conducted by affiliate entities pursuant to
the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq. ) will be counted
in determining such applicant's (or licensee's) compliance with the
financial requirements of this section, unless such applicant establishes
that it will not receive a substantial unfair competitive advantage because
significant legal constraints restrict the applicant's ability to access
such gross revenues.
(6) Consortium. 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, as those terms are defined
in the service-specific rules. Each individual member must constitute a
separate and distinct legal entity to qualify.
(d) The Commission may set aside specific licenses for which only eligible
designated entities, as specified by the Commission, may bid.
(e) The Commission may permit partitioning of service areas in particular
services for eligible designated entities.
(f) Bidding credits. (1) The Commission may award bidding credits ( i.e.,
payment discounts) to eligible designated entities. Competitive bidding
rules applicable to individual services will specify the designated entities
eligible for bidding credits, the licenses for which bidding credits are
available, the amounts of bidding credits and other procedures.
(2) Size of bidding credits . A winning bidder that qualifies as a small
business may use the following bidding credits corresponding to its
respective average gross revenues for the preceding 3 years:
(i) Businesses with average gross revenues for the preceding years, 3 years
not exceeding $3 million are eligible for bidding credits of 35 percent;
(ii) Businesses with average gross revenues for the preceding years, 3 years
not exceeding $15 million are eligible for bidding credits of 25 percent;
and
(iii) Businesses with average gross revenues for the preceding years, 3
years not exceeding $40 million are eligible for bidding credits of 15
percent.
(3) Bidding credit for serving qualifying tribal land. A winning bidder for
a market will be eligible to receive a bidding credit for serving a
qualifying tribal land within that market, provided that it complies with
Sec. 1.2107(e). The following definition, terms, and conditions shall apply for
the purposes of this section and Sec. 1.2107(e):
(i) Qualifying tribal land means any federally recognized Indian tribe's
reservation, Pueblo, or Colony, including former reservations in Oklahoma,
Alaska Native regions established pursuant to the Alaska Native Claims
Settlement Act (85 Stat. 688), and Indian allotments, that has a wireline
telephone subscription rate equal to or less than eighty-five (85) percent
based on the most recently available U.S. Census Data.
(ii) Certification. (A) Within 180 days after the filing deadline for
long-form applications, the winning bidder must amend its long-form
application and attach a certification from the tribal government stating
the following:
( 1 ) The tribal government authorizes the winning bidder to site facilities
and provide service on its tribal land;
( 2 ) The tribal area to be served by the winning bidder constitutes
qualifying tribal land; and
( 3 ) The tribal government has not and will not enter into an exclusive
contract with the applicant precluding entry by other carriers, and will not
unreasonably discriminate among wireless carriers seeking to provide service
on the qualifying tribal land.
(B) In addition, within 180 days after the filing deadline for long-form
applications, the winning bidder must amend its long-form application and
file a certification that it will comply with the construction requirements
set forth in paragraph (f)(3)(vii) of this section and consult with the
tribal government regarding the siting of facilities and deployment of
service on the tribal land.
(C) If the winning bidder fails to submit the required certifications within
the 180-day period, the bidding credit will not be awarded, and the winning
bidder must pay any outstanding balance on its winning bid amount.
(iii) Bidding credit formula. Subject to the applicable bidding credit limit
set forth in Sec. 1.2110(f)(3)(iv), the bidding credit shall equal five hundred
thousand (500,000) dollars for the first two hundred (200) square miles (518
square kilometers) of qualifying tribal land, and twenty-five hundred (2500)
dollars for each additional square mile (2.590 square kilometers) of
qualifying tribal land above two hundred (200) square miles (518 square
kilometers).
(iv) Bidding credit limit. If the high bid is equal to or less than one
million (1,000,000) dollars, the maximum bidding credit calculated pursuant
to Sec. 1.2110(f)(3)(iii) shall not exceed fifty (50) percent of the high bid.
If the high bid is greater than one million (1,000,000) dollars, but equal
to or less than two million (2,000,000) dollars, the maximum bidding credit
calculated pursuant to Sec. 1.2110(f)(3)(iii) shall not exceed five hundred
thousand (500,000) dollars. If the high bid is greater than two million
(2,000,000) dollars, the maximum bidding credit calculated pursuant to
Sec. 1.2110(f)(3)(iii) shall not exceed thirty-five (35) percent of the high
bid.
(v) Bidding credit limit in auctions subject to specified reserve price(s) .
In any auction of eligible frequencies described in section 113(g)(2) of the
National Telecommunications and Information Administration Organization Act
(47 U.S.C. 923(g)(2) with reserve price(s) and in any auction with reserve
price(s) in which the Commission specifies that this provision shall apply,
the aggregate amount available to be awarded as bidding credits for serving
qualifying tribal land with respect to all licenses subject to a reserve
price shall not exceed the amount by which winning bids for those licenses
net of discounts the Commission takes into account when reporting net bids
in the Public Notice closing the auction exceed the applicable reserve
price. If the total amount that might be awarded as tribal land bidding
credits based on applications for all licenses subject to the reserve price
exceeds the aggregate amount available to be awarded, the Commission will
award eligible applicants a pro rata tribal land bidding credit. The
Commission may determine at any time that the total amount that might be
awarded as tribal land bidding credits is less than the aggregate amount
available to be awarded and grant full tribal land bidding credits to
relevant applicants, including any that previously received pro rata tribal
land bidding credits. To determine the amount of an applicant's pro rata
tribal land bidding credit, the Commission will multiply the full amount of
the tribal land bidding credit for which the applicant would be eligible
excepting this limitation ((f)(3)(v)) of this section by a fraction,
consisting of a numerator in the amount by which winning bids for licenses
subject to the reserve price net of discounts the Commission takes into
account when reporting net bids in the Public Notice closing the auction
exceed the reserve price and a denominator in the amount of the aggregate
maximum tribal land bidding credits for which applicants for such licenses
might have qualified excepting this limitation ((f)(3)(v)) of this section.
When determining the aggregate maximum tribal land bidding credits for which
applicants for such licenses might have qualified, the Commission shall
assume that any applicant seeking a tribal land bidding credit on its
long-form application will be eligible for the largest tribal land bidding
credit possible for its bid for its license excepting this limitation
((f)(3)(v)) of this section. After all applications seeking a tribal land
bidding credit with respect to licenses covered by a reserve price have been
finally resolved, the Commission will recalculate the pro rata credit. For
these purposes, final determination of a credit occurs only after any review
or reconsideration of the award of such credit has been concluded and no
opportunity remains for further review or reconsideration. To recalculate an
applicant's pro rata tribal land bidding credit, the Commission will
multiply the full amount of the tribal land bidding credit for which the
applicant would be eligible excepting this limitation ((f)(3)(v)) of this
section by a fraction, consisting of a numerator in the amount by which
winning bids for licenses subject to the reserve price net of discounts the
Commission takes into account when reporting net bids in the Public Notice
closing the auction exceed the reserve price and a denominator in the amount
of the aggregate amount of tribal land bidding credits for which all
applicants for such licenses would have qualified excepting this limitation
((f)(3)(v)) of this section.
(vi) Application of credit . A pending request for a bidding credit for
serving qualifying tribal land has no effect on a bidder's obligations to
make any auction payments, including down and final payments on winning
bids, prior to award of the bidding credit by the Commission. Tribal land
bidding credits will be calculated and awarded prior to license grant. If
the Commission grants an applicant a pro rata tribal land bidding credit
prior to license grant, as provided by paragraph (f)(3)(v) of this section,
the Commission shall recalculate the applicant's pro rata tribal land
bidding credit after all applications seeking tribal land biddings for
licenses subject to the same reserve price have been finally resolved. If a
recalculated tribal land bidding credit is larger than the previously
awarded pro rata tribal land bidding credit, the Commission will award the
difference.
(vii) Post-construction certification. Within fifteen (15) days of the third
anniversary of the initial grant of its license, a recipient of a bidding
credit under this section shall file a certification that the recipient has
constructed and is operating a system capable of serving seventy-five (75)
percent of the population of the qualifying tribal land for which the credit
was awarded. The recipient must provide the total population of the tribal
area covered by its license as well as the number of persons that it is
serving in the tribal area.
(viii) Performance penalties . If a recipient of a bidding credit under this
section fails to provide the post-construction certification required by
paragraph (f)(3)(vii) of this section, then it shall repay the bidding
credit amount in its entirety, plus interest. The interest will be based on
the rate for ten-year U.S. Treasury obligations applicable on the date the
license is granted. Such payment shall be made within thirty (30) days of
the third anniversary of the initial grant of its license. Failure to repay
the bidding credit amount and interest within the required time period will
result in automatic termination of the license without specific Commission
action. Repayment of bidding credit amounts pursuant to this provision shall
not affect the calculation of amounts available to be awarded as tribal land
bidding credits pursuant to (f)(3)(v) of this section.
(g) Installment payments. The Commission may permit small businesses
(including small businesses owned by women, minorities, or rural telephone
companies that qualify as small businesses) and other entities determined to
be eligible on a service-specific basis, which are high bidders for licenses
specified by the Commission, to pay the full amount of their high bids in
installments over the term of their licenses pursuant to the following:
(1) Unless otherwise specified by public notice, each eligible applicant
paying for its license(s) on an installment basis must deposit by wire
transfer in the manner specified in Sec. 1.2107(b) sufficient additional funds
as are necessary to bring its total deposits to ten (10) percent of its
winning bid(s) within ten (10) days after the Commission has declared it the
winning bidder and closed the bidding. Failure to remit the required payment
will make the bidder liable to pay a default payment pursuant to
Sec. 1.2104(g)(2).
(2) Within ten (10) days of the conditional grant of the license application
of a winning bidder eligible for installment payments, the licensee shall
pay another ten (10) percent of the high bid, thereby commencing the
eligible licensee's installment payment plan. If a winning bidder eligible
for installment payments fails to submit this additional ten (10) percent of
its high bid by the applicable deadline as specified by the Commission, it
will be allowed to make payment within ten (10) business days after the
payment deadline, provided that it also pays a late fee equal to five
percent of the amount due. When a winning bidder eligible for installment
payments fails to submit this additional ten (10) percent of its winning
bid, plus the late fee, by the late payment deadline, it is considered to be
in default on its license(s) and subject to the applicable default payments.
Licenses will be awarded upon the full and timely payment of second down
payments and any applicable late fees.
(3) Upon grant of the license, the Commission will notify each eligible
licensee of the terms of its installment payment plan and that it must
execute a promissory note and security agreement as a condition of the
installment payment plan. Unless other terms are specified in the rules of
particular services, such plans will:
(i) Impose interest based on the rate of U.S. Treasury obligations (with
maturities closest to the duration of the license term) at the time of
licensing;
(ii) Allow installment payments for the full license term;
(iii) Begin with interest-only payments for the first two years; and
(iv) Amortize principal and interest over the remaining term of the license.
(4) A license granted to an eligible entity that elects installment payments
shall be conditioned upon the full and timely performance of the licensee's
payment obligations under the installment plan.
(i) Any licensee that fails to submit its quarterly payment on an
installment payment obligation (the “Required Installment Payment”) may
submit such payment on or before the last day of the next quarter (the
“first additional quarter”) without being considered delinquent. Any
licensee making its Required Installment Payment during this period (the
“first additional quarter grace period”) will be assessed a late payment fee
equal to five percent (5%) of the amount of the past due Required
Installment Payment. The late payment fee applies to the total Required
Installment Payment regardless of whether the licensee submitted a portion
of its Required Installment Payment in a timely manner.
(ii) If any licensee fails to make the Required Installment Payment on or
before the last day of the first additional quarter set forth in paragraph
(g)(4)(i) of this section, the licensee may submit its Required Installment
Payment on or before the last day of the next quarter (the “second
additional quarter”), except that no such additional time will be provided
for the July 31, 1998 suspension interest and installment payments from C or
F block licensees that are not made within 90 days of the payment resumption
date for those licensees, as explained in Amendment of the Commission's
Rules Regarding Installment Payment Financing for Personal Communications
Services (PCS) Licensees, Order on Reconsideration of the Second Report and
Order, WT Docket No. 97–82, 13 FCC Rcd 8345 (1998). Any licensee making the
Required Installment Payment during the second additional quarter (the
“second additional quarter grace period”) will be assessed a late payment
fee equal to ten percent (10%) of the amount of the past due Required
Installment Payment. Licensees shall not be required to submit any form of
request in order to take advantage of the first and second additional
quarter grace periods.
(iii) All licensees that avail themselves of these grace periods must pay
the associated late payment fee(s) and the Required Installment Payment
prior to the conclusion of the applicable additional quarter grace
period(s). Payments made at the close of any grace period(s) will first be
applied to satisfy any lender advances as required under each licensee's
“Note and Security Agreement,” with the remainder of such payments applied
in the following order: late payment fees, interest charges, installment
payments for the most back-due quarterly installment payment.
(iv) If an eligible entity obligated to make installment payments fails to
pay the total Required Installment Payment, interest and any late payment
fees associated with the Required Installment Payment within two quarters (6
months) of the Required Installment Payment due date, it shall be in
default, its license shall automatically cancel, and it will be subject to
debt collection procedures. A licensee in the PCS C or F blocks shall be in
default, its license shall automatically cancel, and it will be subject to
debt collection procedures, if the payment due on the payment resumption
date, referenced in paragraph (g)(4)(ii) of this section, is more than
ninety (90) days delinquent.
(h) The Commission may establish different upfront payment requirements for
categories of designated entities in competitive bidding rules of particular
auctionable services.
(i) The Commission may offer designated entities a combination of the
available preferences or additional preferences.
(j) Designated entities must describe on their long-form applications how
they satisfy the requirements for eligibility for designated entity status,
and must list and summarize on their long-form applications all agreements
that affect designated entity status such as partnership agreements,
shareholder agreements, management agreements, spectrum leasing
arrangements, spectrum resale (including wholesale) arrangements, and all
other agreements, including oral agreements, establishing, as applicable, de
facto or de jure control of the entity or the presence or absence of
impermissible and attributable material relationships. Designated entities
also must provide the date(s) on which they entered into each of the
agreements listed. In addition, designated entities must file with their
long-form applications a copy of each such agreement. In order to enable the
Commission to audit designated entity eligibility on an ongoing basis,
designated entities that are awarded eligibility must, for the term of the
license, maintain at their facilities or with their designated agents the
lists, summaries, dates, and copies of agreements required to be identified
and provided to the Commission pursuant to this paragraph and to Sec. 1.2114.
(k) The Commission may, on a service-specific basis, permit consortia, each
member of which individually meets the eligibility requirements, to qualify
for any designated entity provisions.
(l) The Commission may, on a service-specific basis, permit publicly-traded
companies that are owned by members of minority groups or women to qualify
for any designated entity provisions.
(m) Audits. (1) Applicants and licensees claiming eligibility shall be
subject to audits by the Commission, using in-house and contract resources.
Selection for audit may be random, on information, or on the basis of other
factors.
(2) Consent to such audits is part of the certification included in the
short-form application (FCC Form 175). Such consent shall include consent to
the audit of the applicant's or licensee's books, documents and other
material (including accounting procedures and practices) regardless of form
or type, sufficient to confirm that such applicant's or licensee's
representations are, and remain, accurate. Such consent shall include
inspection at all reasonable times of the facilities, or parts thereof,
engaged in providing and transacting business, or keeping records regarding
FCC-licensed service and shall also include consent to the interview of
principals, employees, customers and suppliers of the applicant or licensee.
(n) Annual reports . Each designated entity licensee must file with the
Commission an annual report within five business days before the anniversary
date of the designated entity's license grant. The annual report shall
include, at a minimum, a list and summaries of all agreements and
arrangements (including proposed agreements and arrangements) that relate to
eligibility for designated entity benefits. In addition to a summary of each
agreement or arrangement, this list must include the parties (including
affiliates, controlling interests, and affiliates of controlling interests)
to each agreement or arrangement, as well as the dates on which the parties
entered into each agreement or arrangement. Annual reports will be filed no
later than, and up to five business days before, the anniversary of the
designated entity's license grant.
(o) Gross revenues. Gross revenues shall mean all income received by an
entity, whether earned or passive, before any deductions are made for costs
of doing business (e.g., cost of goods sold), as evidenced by audited
financial statements for the relevant number of most recently completed
calendar years or, if audited financial statements were not prepared on a
calendar-year basis, for the most recently completed fiscal years preceding
the filing of the applicant's short-form (FCC Form 175). If an entity was
not in existence for all or part of the relevant period, gross revenues
shall be evidenced by the audited financial statements of the entity's
predecessor-in-interest or, if there is no identifiable
predecessor-in-interest, unaudited financial statements certified by the
applicant as accurate. When an applicant does not otherwise use audited
financial statements, its gross revenues may be certified by its chief
financial officer or its equivalent and must be prepared in accordance with
Generally Accepted Accounting Principles.
(p) Total assets. Total assets shall mean the book value (except where
generally accepted accounting principles (GAAP) require market valuation) of
all property owned by an entity, whether real or personal, tangible or
intangible, as evidenced by the most recently audited financial statements
or certified by the applicant's chief financial offer or its equivalent if
the applicant does not otherwise use audited financial statements.
[ 63 FR 2343 , Jan. 15, 1998; 63 FR 12659 , Mar. 16, 1998, as amended at 63 FR 17122 , Apr. 8, 1998; 65 FR 47355 , Aug. 2, 2000; 65 FR 52345 , Aug. 29, 2000;
65 FR 68924 , Nov. 15, 2000; 67 FR 16650 , Apr. 8, 2002; 67 FR 45365 , July 9,
2002; 68 FR 23422 , May 2, 2003; 68 FR 42996 , July 21, 2003; 69 FR 61321 ,
Oct. 18, 2004; 70 FR 57187 , Sept. 30, 2005; 71 FR 6227 , Feb. 7, 2006; 71 FR 26251 , May 4, 2006]
Goto Section: 1.2109 | 1.2111
Goto Year: 2006 |
2008
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