PUBLIC NOTICE FEDERAL COMMUNICATIONS COMMISSION News Media Information: (202) 418-0500 445 12th STREET, S.W. Fax-On-Demand: (202) 418-2830 WASHINGTON, D.C. 20554 Internet: http://www.fcc.gov ftp.fcc.gov DA 01-1300 May 25, 2001 Auction Filing Window For New Analog Television Stations Auction No. 82 Report No. AUC-01-82-A (Auction No. 82) The Mass Media Bureau ("MMB") and the Wireless Telecommunications Bureau ("WTB") announce an auction filing window for new analog television stations for the channels and communities listed below. As noted, for each of these stations, there is currently pending a long-form (FCC Form 301) application. Therefore, parties interested in filing for these stations should understand that it is likely that their application will be mutually exclusive with a previously-filed application and that selection among mutually exclusive applicants for these stations will be via the Commission's broadcast competitive bidding rules. See 47 C.F.R.  73.5000 et seq. The four construction permits listed below are full service television stations and will use the designator code of PST. Ch. City State File Number Pending Applicant 47 Columbia SC BPCT-19960722KG Fant Broadcast Development, LLC 51 Pittsfield MA BPCT-19960724LI Pappas Telecasting of America 34 Magee MS BPCT-19960920LS Marri Broadcasting, LP 16 Scottsbluff NE BPCT-19960111LO Wyomedia Corporation The filing window will open on June 25, 2001, and close on June 29, 2001. Those wishing to participate in the auction, including those with the pending applications listed above, must file a short-form application (FCC Form 175) by 5:30 p.m. Eastern Time, June 29, 2001. As for the pending applicants, failure to submit an FCC Form 175 during this window will result in dismissal of the pending application. See Attachments A, B, and C for more information regarding the completion of Form 175, including information on bidding credits and designated entities. In order to permit the filing of short-form applications during a period in which the Wireless Telecommunications Bureau has planned infrastructure upgrades, the Bureau hereby waives the electronic filing requirement for short-form applications for Auction No. 82 and will accept manually-filed short-form applications. For more information regarding the manual filing of short-form applications, see Attachments A and B. Pursuant to the Commission's broadcast competitive bidding rules, only the winning bidder will be required to submit a long form (FCC Form 301) following the close of the auction. See 47 C.F.R. 73.5005. If the winning bidder is the applicant listed above, then the winning bidder will only be required to file amendments necessary to make their pending application accurate and complete. For additional information, contact Shaun Maher at the Video Services Division, Mass Media Bureau at (202) 418-1600. List of Attachments: Attachment A: Pre-Auction Procedures Attachment B: Guidelines for Completion of FCC Form 175 and Exhibits Attachment C: Eligibility for New Entrant Bidding Credit; Ownership Disclosure Requirements; Consortia and Joint Bidding Arrangements ATTACHMENT A PRE-AUCTION PROCEDURES A. Short-Form Application (FCC Form 175) Filing Procedures -- Due June 29, 2001, 5:30 p.m. ET All applicants must submit an FCC Form 175 application no later than 5:30 p.m. ET on June 29, 2001. Late applications will not be accepted. There is no application fee required when filing an FCC Form 175. (1) Manual Filing All FCC Form 175 applications for this filing window must be filed manually. Applicants must use the October 2000 version of FCC Form 175 and FCC Form 175 Schedule B. Earlier versions of the FCC Form 175 will not be accepted for filing. A copy of the form, along with instructions are included in this public notice. Additional copies of the FCC Form 175 can be obtained by calling the Commission's Forms Distribution Center at (800) 418-3676 (outside Washington, D.C.) or (202) 418-3676 (in the Washington area). Copies can also be downloaded from the Commission's World Wide Web site at http://www.fcc.gov/formpage.html. If applicants have any questions concerning availability of the FCC Form 175, they should call the FCC Records Management Branch at (202) 418-0210. Applications must be submitted by hand delivery (including private "overnight" courier) or by U.S. mail (certified mail with return receipt recommended), addressed to: FCC Form 175 Filing Auction No. 82 Federal Communications Commission Wireless Telecommunications Bureau Auctions and Industry Analysis Division 1270 Fairfield Road Gettysburg, PA 17325-7245 NOTE: Applications delivered to any other location or applications sent via facsimile will not be accepted. (2) Completion of the FCC Form 175 Applicants should carefully review 47 C.F.R. Sections 1.2105 and 73.5002 and must complete all items on the FCC Form 175. Detailed instructions for completing the FCC Form 175 are listed Attachment B of this Public Notice. Failure to sign the FCC Form 175 will result in dismissal of the application and loss of the ability to participate in the auction. Only original signatures will be accepted for filed applications. B. Prohibition of Collusion To insure the competitiveness and integrity of the auction process, the Commission's Rules prohibit competing applicants from communicating with each other during the auction about bids, bidding strategies, or settlements. This prohibition becomes effective at the short- form application deadline, and ends on the post-auction down payment due date. Bidders competing for the same construction permit(s) 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 the bidders he or she is authorized to represent in the auction. Also, if the authorized bidders are different individuals employed by the same organization (e.g., law firm or technical consulting firm), a violation could similarly occur. At a minimum, in such a case, applicants should certify 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. The Bureaus, however, caution 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. However, applicants may enter into bidding agreements before filing their FCC Form 175 short-form applications, as long as they disclose the existence of the agreement in their FCC Form 175 applications. By submitting their FCC Form 175 short-form applications, applicants are certifying their compliance with Sections 1.2105(c) and 73.5002. In addition, Section 1.65 of the Commission's Rules requires an applicant to maintain the accuracy and completeness of information furnished in its pending application and to notify the Commission, as promptly as possible and in any event within 30 days, of any substantial change that may be of decisional significance to that application. Thus, Section 1.65 requires an auction applicant to notify the Commission of any violation of the anti-collusion rules upon learning of such violation. Bidders are therefore required to make such notification to the Commission immediately upon discovery. C. Application Processing and Minor Corrections After the deadline for filing has passed, and assuming more than one FCC Form 175 is received, the FCC will subsequently issue a public notice identifying: (1) those applications which are mutually exclusive (including FCC reference numbers); (2) those applications rejected; and (3) those applications that have minor defects that may be corrected, and the deadline and instructions for filing such corrected applications. If only one FCC Form 175 is received for a specific construction permit during the window, that construction permit will be removed from the auction inventory. That applicant will then be required to submit FCC Form 301, unless one has already been filed by that party. As described more fully in the Commission's Rules, after the June 29, 2001 filing deadline, an applicant may make only minor non-technical corrections to its FCC Form 175 application. Applicants will not be permitted to make major modifications to their applications. See 47 C.F.R. Section 1.2105. For this reason it is critical that all applicants carefully review their FCC Form 175 submissions prior to the close of the initial filing window. (1) Review of FCC Form 175 Applicants may review their own and other applicants' completed FCC Form 175s after the filing deadline has passed and the FCC has issued a public notice concerning the status of the applications. The forms will be available for review at the Public Reference Center, Office of Media Relations, 445 Twelfth Street, SW, Suite CY-A257, Washington, DC 20554. Applicants may also obtain copies of the forms from the FCC Copy Contractor, International Transcription Services, Inc., at the same address, Room CY-B400, (202) 314- 3070. ATTACHMENT B GUIDELINES FOR COMPLETION OF FCC FORM 175 AND EXHIBITS A. FCC Form 175 Because of the significance of the FCC Form 175 application to the auction, applicants should especially note the following: Applicants must use the October 2000 version of the FCC Form 175 and FCC Form 175 Schedule B. Earlier versions of the FCC Form 175 will not be accepted. A copy of the form along with instructions are included in this public notice. Additional copies of the FCC Form 175 can be obtained by calling the Commission's Forms Distribution Center at (800) 418-3676) (outside Washington, D.C.) or (202) 418-3676) (in the Washington area). Copies can also be downloaded from the Commission's World Wide Web site at http://www.fcc.gov/formpage.html. If applicants have any questions concerning availability of the FCC Form 175, they should call the FCC Records Management Branch at (202) 418-0210. Filing Address: Applications may be submitted by hand delivery (including private "overnight" courier or by U.S. mail (certified mail with return receipt recommended), address to: FCC Form 175 Filing Auction No. 82 Federal Communications Commission Auctions and Industry Analysis Division 1270 Fairfield Road Gettysburg, PA 17325-7245 NOTE: Applications delivered to any other location will not be accepted. Applicant: Name given is used as your bidder name in the auction. Applicant Address: Applicants must provide a street address (not a Post Office box number), suitable for mail or private parcel delivery. Applicant Classification: Applicants must indicate their legal classification. The FCC Form 175 requires the applicant to classify itself as an individual, joint venture, partnership, trust, corporation, consortium, association, limited liability company (LLC) or government entity. Applicant Status: Applicants are requested to indicate their status as a rural telephone company, minority-owned business and/or women-owned business, so that the FCC can monitor its performance in promoting economic opportunities for these designated entities. Bidding Credit Eligibility: Applicants that qualify for the New Entrant Bidding Credit must enter the applicable bidding credit (25 percent or 35 percent) in the bidding credit eligibility item on the FCC Form 175. Applicants are advised that this is the sole opportunity to select "New Entrant" status and claim a bidding credit level (if applicable). There is no opportunity to change the election once the initial short-form filing deadline passes on June 29, 2001. Licenses/Construction Permits: Applicants should list all construction permits on which they want to be eligible to bid in the auction. Broadcast applicants should use FCC Form 175 Schedule B to list construction permits. Be advised that there is no opportunity to change this list once the short-form filing deadline passes on June 29, 2001. It is critically important that you confirm the construction permits that you have selected because the FCC auction system will not accept bids on construction permits for which an applicant has not applied on its FCC Form 175. Authorized Bidders: Applicants must list the name(s) of the person(s) (no more than three) authorized to represent them at the auction. Only those individuals listed on the FCC Form 175 will be authorized to place or withdraw bids for the applicant during the auction. Certifications: Applicants should carefully read the list of certifications on the FCC Form 175. These certifications help to ensure a fair and competitive auction and require, among other things, disclosure to the Commission of certain information on applicant ownership and agreements or arrangements concerning the auction. Submission of an FCC Form 175 application constitutes a representation by the certifying official that he or she is an authorized representative of the applicant, has read the form's instructions and certifications, and that the contents of the application and its attachments are true and correct. Submission of a false certification to the Commission may result in penalties, including monetary forfeitures, license/permit forfeitures, ineligibility to participate in future auctions, and/or criminal prosecution. Contact person/address: If the Commission wishes to communicate with the applicant by telephone or fax, those communications will be directed to the contact person identified on the FCC Form 175. Space is provided for an address, telephone number, fax number, and e-mail address. All written communication and registration information will be directed to the applicant's contact person at the address specified on the FCC Form 175. Applicants must provide a street address; no P.O. Box addresses may be used. Completeness: Applicants must submit all information required by the FCC Form 175 and by applicable rules. Failure to submit required information by the resubmission date will result in dismissal of the application and inability to participate in the auction. See 47 C.F.R.  1.2105(b). NOTE: Failure to sign the FCC Form 175 will result in dismissal of the application and loss of the ability to participate in the auction. Only original signatures will be accepted. Continuing Accuracy: Each applicant is responsible for the continuing accuracy and completeness of information furnished in the FCC Form 175 and its exhibits. See 47 C.F.R.  1.65. Applicants are reminded that they consent to be audited in the certification section of the FCC Form 175 (see certification item number 6). B. Exhibits and Attachments In addition to the FCC Form 175 itself, applicants must submit additional information required by the Commission's rules. Although the FCC does not require a particular format for this information, it has developed the following guidelines that will facilitate the processing of short-form applications. The FCC encourages applicants to submit this information using the following format. Exhibit A -- Applicant Identity and Ownership Information: Section 73.5002 of the broadcast competitive bidding procedural rules specifies the bidding procedures, certification requirements, and anti-collusion rules applicable to applications for commercial broadcast services that are subject to auction. Subsection (b) of that rule requires the timely submission of short-form applications along with all required certifications, information and exhibits pursuant to the provisions of 47 C.F.R.  1.2105(a). Section 1.2105, in turn, requires the disclosure on the short-form of applicant ownership information as set forth in Section 1.2112. Specifically, 47 C.F.R.  1.2105(a)(2)(ii) requires each applicant to fully disclose the real party or parties-in-interest, and the addresses and citizenship of the parties, in an exhibit to its FCC Form 175 application. Furthermore, each applicant applying for a New Entrant Bidding Credit must provide detailed ownership information for itself and its attributable interest holders, as defined by Section 73.3555 of the Commission's rules and by Note 2 to that Section. Regardless of whether a New Entrant Bidding Credit is being sought, all applicants must provide the identification and ownership information. Exhibit B -- Agreements with Other Parties/Joint Bidding Arrangements: Applicants must attach an exhibit identifying all parties with whom they have entered into any agreements, arrangements or understandings of any kind that relate to the construction permits being auctioned, including any agreements relating to the post-auction market structure. See 47 C.F.R.  1.2105(a)(2)(viii). Certification (4) to the FCC Form 175 requires the applicant to certify that it will not enter into any explicit or implicit agreements or understandings of any kind with parties not identified in the application regarding bid amounts, bidding strategies, or the particular construction permits on which the applicant will or will not bid. See 45 C.F.R.  1.2105(a)(2)(ix). Except to the extent provided in 47 C.F.R.  73.5002 (d), the prohibition of collusion set forth in 47 C.F.R.  1.2105(c) becomes effective upon the filing of short-form applications. To prevent collusion, the Commission's Rules generally prohibit communication among applicants for the same mutually exclusive permits or licenses between the initial short-form applications filing deadline and the deadline for down payments on construction permits won, when such communication concerns bids, bidding strategies, or settlements. 47 C.F.R.  1.2105(c). Exhibit C -- Status as a New Entrant Bidding Credit Recipient: An applicant claiming that it qualifies for a 35 percent new entrant credit must certify under penalty of perjury that neither it nor any of its attributable interest holders have any attributable interests in any other media of mass communications, as defined in 47 C.F.R.  73.5008. With respect to those qualifying for a 25 percent credit, the applicant must provide a certification under penalty of perjury that neither it nor any of its attributable interest holders have attributable interests in more than three media of mass communications, as defined in 47 C.F.R.  73.5008. In addition, applicants claiming a 25 percent credit shall identify and describe such media of mass communications. See 47 C.F.R.  73.5007 and 73.5008. Exhibit D -- Information Requested of Designated Entities: Applicants owned by minorities or women, as defined in 47 C.F.R.  1.2110(c)(3), or that are rural telephone companies, as defined in 47 C.F.R.  1.2110(c)(4), may attach an exhibit regarding this status. This information, in conjunction with the information in the Applicant Status item, will assist the Commission in monitoring the participation of these "designated entities" in its auctions. Exhibit E - Miscellaneous: Applicants wishing to submit additional information may do so in Exhibit E. ATTACHMENT C ELIGIBILITY FOR NEW ENTRANT BIDDING CREDIT; OWNERSHIP DISCLOSURE REQUIREMENTS; CONSORTIA AND JOINT BIDDING ARRANGEMENTS ELIGIBILITY FOR NEW ENTRANT BIDDING CREDIT A. General Eligibility Criteria To fulfill its obligations under Section 309(j) and further its long-standing commitment to the diversification of broadcast facility ownership, the Commission adopted a tiered New Entrant Bidding Credit for auction applicants with no, or very few other media interests. (1) Determination of Eligibility for Bidding Credit For purposes of determining which entities qualify for a New Entrant Bidding Credit, the following information should be considered: the interests of the bidder, and of any individuals or entities with an attributable interest in the bidder, in other media of mass communications at the time of the short-form application filing deadline. The interests held by the bidder, and by any individual or entity with an attributable interest in the bidder, in other media of mass communications shall be considered when determining a bidder's eligibility for the New Entrant Bidding Credit. Under traditional broadcast attribution rules, those entities or individuals with an attributable interest in a bidder include: all officers and directors of a corporate bidder; any owner of 5% or more of the voting stock of a corporate bidder; all partners and limited partners of a partnership bidder, unless the limited partners are sufficiently insulated; and all members of a limited liability company, unless insulated. In cases where a bidder's spouse or close family member holds other media interests, such interests are not automatically attributable to the bidder. The Commission decides attribution issues in this context based on certain factors traditionally considered relevant. Bidders should note that the mass media attribution rules were recently revised. Bidders are also reminded that, by Memorandum Opinion and Order released August 5, 1999, the Commission further refined the eligibility standards for the New Entrant Bidding Credit, judging it appropriate to attribute the media interests held by very substantial investors in, or creditors of, a bidder claiming new entrant status. Specifically, the attributable mass media interests held by an individual or entity with an equity and/or debt interest in a bidder shall be attributed to that bidder for purposes of determining its eligibility for the New Entrant Bidding Credit, if the equity and debt interests, in the aggregate, exceed 33% of the total asset value of the bidder, even if such an interest is non-voting. Generally, media interests will be attributable for purposes of the New Entrant Bidding Credit to the same extent that such other media interests are considered attributable for purposes of the broadcast multiple ownership rules. However, attributable interests held by a winning bidder in existing low power television, television translator or FM translator facilities will not be counted among the bidders' other mass media interests in determining its eligibility for a New Entrant Bidding Credit. A medium of mass communications is defined in 47 C.F.R  73.5008(b). The bidder's attributable interests shall be determined as of the short form (FCC Form 175) filing deadline. Bidders intending to divest a media interest or make any other ownership changes, such as resignation of positional interests, in order to avoid attribution for purposes of qualifying for the New Entrant Bidding Credit must have consummated such divestment transactions or have completed such ownership changes by no later than the short-form filing deadline. (2) Application Showing Applicants are required to file supporting documentation as Exhibits A and C to their FCC Form 175 short-form applications to establish that they satisfy the eligibility requirements to qualify for a New Entrant Bidding Credit. In addition, in those cases where a New Entrant Bidding Credit is being sought, a certification under penalty of perjury must be set forth in Exhibit C attesting to the eligibility of the bidder for the level of Credit claimed. B. Bidding Credits Applicants that qualify for the New Entrant Bidding Credit, as set forth in 47 C.F.R.  73.5007, are eligible for a bidding credit that represents the amount by which a bidder's winning bids are discounted. The size of a New Entrant Bidding Credit depends on the number of ownership interests in other media of mass communications that are attributable to the bidder-entity and its attributable interest-holders: ? A 35 percent bidding credit will be given to a winning bidder if it, and/or any individual or entity with an attributable interest in the winning bidder, has no attributable interest in any other media of mass communications, as defined in 47 C.F.R.  73.5008; and, ? A 25 percent bidding credit will be given to a winning bidder if it, and/or any individual or entity with an attributable interest in the winning bidder, has an attributable interest in no more than three mass media facilities, as defined in 47 C.F.R.  73.5008; and, ? No bidding credit will be given if any of the commonly owned mass media facilities serve the same area as the proposed broadcast station, as defined in 47 C.F.R.  73.5007, or if the winning bidder, and/or any individual or entity with an attributable interest in the winning bidder, have attributable interests in more than three mass media facilities. Bidding credits are not cumulative; qualifying applicants receive either the 25 percent or the 35 percent bidding credit, but not both. Attributable interests are defined in 47 C.F.R.  73.3555 and Note 2 of that section. Bidders should note that unjust enrichment provisions apply to a winning bidder that utilizes a bidding credit and subsequently seeks to assign or transfer control its license or construction permit to an entity not qualifying for the same level of bidding credit. OWNERSHIP DISCLOSURE REQUIREMENTS All applicants must comply with the uniform Part 1 ownership disclosure standards and provide information set forth in Sections 1.2105 and 1.2112 of the Commission's rules. Specifically, in completing Form 175, applicants will be required to file in Exhibit A, a full and complete statement of the ownership of the bidding entity. The ownership disclosure standards for the short form are set forth in Section 1.2112 of the Commission's rules. Applicants should note that Section 1.2112 requires the reporting of interests of ten percent or greater of any FCC-regulated entity or applicant for an FCC license. Applicants owned by minorities or women, as defined in 47 C.F.R.  1.2110(c)(3), may attach an exhibit (Exhibit D) regarding this status. This applicant status information is collected for statistical purposes only and assists the Commission in monitoring the participation of "designated entities" in its auctions. Applicants wishing to submit additional information may do so in Exhibit E -Miscellaneous Information - to the FCC Form 175. CONSORTIA AND JOINT BIDDING ARRANGEMENTS Applicants will be required to identify on their short-form applications any parties with whom they have entered into any consortium arrangements, joint ventures, partnerships or other agreements or understandings which relate in any way to the competitive bidding process. See 47 C.F.R.  1.2105(a)(2)(viii); 1.2105(c)(1). Applicants will also be required to certify on their short form applications that they have not entered into any explicit or implicit agreements, arrangements or understandings of any kind with any parties, other than those identified, regarding the amount of their bids, bidding strategies, or the particular construction permits on which they will or will not bid. See 47 C.F.R.  1.2105(a)(2)(ix). In cases where such consortia or joint bidding arrangement are contemplated, applicants must submit an Exhibit B to the FCC Form 175. See 47 C.F.R  1.2105(a). See, e.g., "Wireless Telecommunications Bureau Responds to Questions About the Local Multipoint Distribution Service Auction," Public Notice, 13 FCC Rcd 341 (1998); Application of Nevada Wireless for a License to Provide 800 MHz Specialized Mobile Radio Service in the Farmington, NM-CO Economic Area (EA- 155) Frequency Band A, Memorandum Opinion and Order, 13 FCC Rcd 11973, 11977 11 (1998) ("Nevada Wireless"). See Nevada Wireless, supra note 1 at 11978, 13. See 47 C.F.R.  1.2105(c). See 47 C.F.R.  73.3555 Note 2. See Clarification of Commission Policies Regarding Spousal Attribution, 7 FCC Rcd 1920 (1992). See Review of the Commission's Regulations Governing Attribution of Broadcast and Cable/MDS Interests, MM Docket No. 94-150, FCC 99-207 (rel. August 6, 1999) (prior history omitted). Implementation of Section 309(j) of the Communications Act - Competitive Bidding for Commercial Broadcast and Instructional Television Fixed Service Licenses, MM Docket No. 97-234, 64 Fed. Reg. 44856 (August 18, 1999). See 47 C.F. R.  73.5008. Further, any bidder asserting new entrant status must have de facto as well as de jure control of the entity claiming the bidding credit. 47 C.F.R.  73.5007. Typically, de jure control is evidenced by ownership of at least 50.1 percent of an entity's voting stock or equivalent level of interest in cases where the bidder is not a corporate entity. De facto control is determined on a case-by-case basis. Memorandum Opinion and Order on Reconsideration at 75. The fact that, on the short form filing deadline, a bidder has a pending or granted application to assign or transfer control of a media interest shall not be sufficient to avoid attribution. Bidders must have consummated the transaction by the short form filing deadline to avoid attribution. See 47 C.F.R.  1.2105. Section 73.5007 of the Commission's rules was most recently revised pursuant to the Memorandum Opinion and Order on Reconsideration. The revised version of the rule became effective on July 6, 1999. See 47 C.F.R.  73.5007( c ). Section 73.5002 of the broadcast competitive bidding procedural rules specifies the bidding procedures, certification requirements, and anti-collusion rules applicable to applications for commercial broadcast services that are subject to auction. Subsection (b) of that rule requires the timely submission of short- form applications along with all required certifications, information and exhibits pursuant to the provisions of 47 C.F.R.  1.2105(a). Section 1.2105, in turn, requires the disclosure on the short-form of applicant ownership information as set forth in Section 1.2112.