Implementation of Section 309(j) of the Communications Act Competitive Bidding

Federal RegisterJul 22, 1994

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SUMMARY: In this Fifth Report and Order, the Commission adopts rules

governing competitive bidding to award initial licenses in the Personal

Communications Services in the 2 GHz band (broadband PCS''). This

action is taken to implement Section 309(j) of the Communications Act

of 1934, as amended. The new rules will promote the development and

rapid deployment of new technologies, products, and services for the

benefit of the public, including those residing in rural areas. These

rules also will promote economic opportunity and competition, and

disseminate licenses among a wide variety of applicants, including

small businesses, rural telephone companies, and businesses owned by

members of minority groups and women. This action will result in

recovery for the public of a portion of the value of the public

spectrum made available for commercial use.

EFFECTIVE DATE: August 22, 1994.

FOR FURTHER INFORMATION CONTACT:

Sara Seidman, Office of General Counsel, (202) 418-1700, or Jonathan

Cohen, Office of Plans and Policy, (202) 418-2030.

SUPPLEMENTARY INFORMATION: This Fifth Report and Order in PP Docket No.

93-253, adopted June 29, 1994, and released July 15, 1994, is available

for inspection and copying during normal business hours in the FCC

Dockets Branch, Room 230, 1919 M Street NW., Washington, DC. The

complete text may be purchased from the Commission's copy contractor,

International Transcription Service, Inc., 2100 M Street, NW., Suite

140, Washington, DC 20037, telephone (202) 857-3800.

Paperwork Reduction Act

In the Fifth Report and Order in PP Docket No. 93-253, the

Commission has amended 47 CFR Part 24 to add new Subparts H and I which

contain rules and requirements governing the award of broadband PCS

licenses through a system of competitive bidding. Applicants are

required to file certain information so that the Commission can

determine whether the applicants are legally, technically, and

financially qualified to be licensed. Affected public are any member of

the public who wants to become a licensee. Implementation of the rules

contained in the Fifth Report and Order will impose reporting and

recordkeeping requirements on the public. The Federal Communications

Commission will submit an information collection request to OMB for

review and clearance under the Paperwork Reduction Act of 1980, 44

U.S.C. Section 3507. Persons wishing to comment on this information

collection should contact Timothy Fain, Office of Management and

Budget, Room 3225, New Executive Office Building, Washington, DC 20503,

(202) 395-3561. For further information, contact Judy Boley, Federal

Communications Commission, (202) 418-0210.

Fifth Report and Order

Adopted: June 29, 1994

Released: July 15, 1994

By the Commission: Commissioners Quello, Barrett, Ness and Chong

issuing separate statements.

Table of Contents

I. Introduction

II. Executive Summary

III. Auctionability of Broadband PCS

IV. Competitive Bidding Design

A. General Competitive Bidding Rules

B. Competitive Bidding Design for Broadband PCS Licenses

1. Simultaneous Multiple Round Auctions

2. Sequential Auctions

3. Combinatorial Bidding

C. Bidding Procedures

1. Grouping of Licenses

2. Bid Increments

3. Stopping Rules for Multiple Round Auctions

4. Duration of Bidding Rounds

5. Activity Rules

V. Procedural, Payment and Penalty Issues

A. Pre-Auction Application Procedures

B. Upfront Payment

C. Payment and Procedures for Licenses Awarded by Competitive

Bidding

1. Down Payment

2. Bid Withdrawal and Default Penalties

3. Re-Offering Licenses When Auction Winners Default

4. Long-Form Application

5. Processing and Procedural Rules

D. Procedures in Alternative Auction Design

VI. Regulatory Safeguards

A. Transfer Disclosure Requirements

B. Performance Requirements

C. Rules Prohibiting Collusion

VII. Treatment of Designated Entities

A. Overview and Objectives

B. Summary of Special Provisions for Designated Entities

C. Summary of Eligibility Requirements and Definitions

1. Entrepreneurs' Blocks and Small Business Eligibility

2. Definition of Women and/or Minority-Owned Business

D. The Entrepreneurs' Blocks

E. Bidding Credits

F. Installment Payments

G. Tax Certificates

H. Provisions for Rural Telephone Companies

I. Upfront Payments

J. Definitions and Eligibility

1. Eligibility To Bid in the Entrepreneurs' Blocks

a. Attribution Rules for the Entrepreneurs' Blocks

b. Limit on Licenses Awarded in Entrepreneurs' Blocks

2. Definition of Small Business

3. Definition of Women and Minority-Owned Business

4. Definition of Rural Telephone Company

5. Definition of an Affiliate

VIII. Conclusion, Procedural Matters and Ordering Clauses

A. Conclusion

B. Final Regulatory Flexibility Analysis

C. Ordering Clauses

Final Rules

I. Introduction

1. In this Fifth Report and Order, we adopt rules to conduct

auctions for the award of more than 2,000 licenses to provide personal

communications services in the 2 GHz band, which we call ``broadband

PCS.'' These broadband PCS auctions will constitute the largest auction

of public assets in American history and are expected to recover

billions of dollars for the United States Treasury. More importantly,

the auctions will lead to the introduction of an array of new

telecommunications products and services that are expected to fuel our

nation's economic growth and revolutionize the way in which Americans

communicate.

2. We also adopt in this Order provisions to fulfill Congress's

mandate that we ensure that small businesses, rural telephone companies

and businesses owned by minorities and women are given the opportunity

to participate in the provision of broadband PCS. These rules will

provide unprecedented opportunities for these designated entities to

become meaningfully involved in the provision of a new

telecommunications service. This action seeks to ensure that licenses

for broadband PCS are disseminated to a wide variety of applicants and

to remedy the serious underrepresentation of minorities and women in

the provision of telecommunications services. Further, by the actions

we take today we seek to ensure that PCS is provided to all communities

in this country, including rural areas.

3. Broadband PCS will provide a variety of mobile services that

will compete with existing cellular services. In addition, broadband

PCS is expected to provide new mobile communications capabilities that

are not currently available. These services will be provided by means

of a new generation of communications devices that will include small,

lightweight, multi-function portable phones, portable facsimile and

other imaging devices, new types of multi-channel cordless phones, and

advanced paging devices with two-way data capabilities.\1\ The

introduction of broadband PCS should benefit consumers by raising the

overall level of competition in many already competitive segments of

the telecommunications industry and by providing competition in other

segments for the first time. The broadband PCS industry should also

generate thousands of jobs in this country and improve the

international competitiveness of the American economy.

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\1\We already have adopted rules for competitive bidding on

licenses to be awarded to provide personal communications services

in the 900 MHz band (narrowband PCS), which will be used primarily

to provide advanced paging services, and for licenses to provide

Interactive Video and Data Service (IVDS), which will be used to

provide services such as home shopping and pay-per-view programming.

See Third Report and Order in PP Docket No. 99-253, FCC 94-98, 59 FR

26741, May 24, 1994 (narrowband PCS); and Fourth Report and Order in

PP Docket No. 93-253, FCC 94-99, 59 FR 24947, May 13, 1994 (IVDS).

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4. Auctions for broadband PCS licenses will be conducted pursuant

to Section 309(j) of the Communications Act, 47 U.S.C. Sec. 309(j),

which was enacted in August 1993. Section 309(j) granted the Commission

express authority to employ competitive bidding procedures to award

licenses to use the electromagnetic spectrum.\2\ Section 309(j)(1)

permits auctions only where mutually exclusive applications for initial

licenses are accepted for filing by the Commission and where the

principal use of the spectrum is reasonably likely to involve the

receipt by the licensee of compensation from subscribers in return for

enabling those subscribers to receive or transmit communications

signals. In the Second Report and Order in his proceeding, we concluded

that PCS as a class of service satisfies the Section 309(j)(1)

criteria. See Second Report and Order in PP Docket No. 93-253, 9 FCC

Rcd 2348, 59 FR 22980, May 4, 1994 (Second Report and Order), at 54-

58. Accordingly, if mutually exclusive applications for a broadband PCS

license are accepted for filing, we will award that license through

competitive bidding.

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\2\We adopted a Notice of Proposed Rule Making to implement

Section 309(j) on September 23, 1993. Notice of Proposed Rule Making

in PP Docket No. 93-253, 8 FCC Rcd 7635, 58 FR 53489, Oct. 15, 1993

(hereinafter ``NPRM'' or ``Notice''). The Commission received 222

comments, 169 reply comments and numerous ex parte presentations

relating to this proceeding. Commenters may be referred to herein by

abbreviations.

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5. We also concluded in the Second Report and Order that we could

design auction procedures to govern the award of broadband PCS licenses

that would promote the objectives listed in Section 309(j)(3). More

specifically, in the Second Report and Order, we determined that the

use of competitive bidding to award broadband PCS licenses, as compared

with other licensing methods, would speed the development and

deployment of new services to the public and would encourage efficient

use of the spectrum, as required by Section 309(j)(3) (A) and (D). In

this regard, we noted that auctions would generally award licenses

quickly to those parties who value them most highly and who are

therefore most likely to introduce service rapidly to the public. Id.

at 57. We also concluded that competitive bidding would recover for

the public a portion of the value of the spectrum, as envisioned in

Section 309(j)(3)(C). Id. We considered a variety of methods to

implement Congress's remaining objectives, set forth in Section

309(j)(3)(B), of ``promoting economic opportunity'' and ``avoiding

excessive concentration of licenses'' by disseminating licenses ``among

a wide variety of applicants.'' In the Second Report and Order, we

adopted rules which provide the Commission with a menu of options to

choose from to promote these objectives with respect to particular

spectrum services to be auctioned, such as broadband PCS, in service-

specific rules.

6. In our Broadband PCS Reconsideration Order, we established

bandwidth assignments and area designations for broadband PCS. See

Memorandum Opinion and Order in GEN Docket No. 90-314, FCC 94-144, 59

FR 32830, June 24, 1994 (``Broadband PCS Reconsideration Order''); see

also Second Report and Order in GEN Docket No. 90-314, FCC 93-451, 8

FCC Rcd 7700, 58 FR 59174, Nov. 8, 1993. In that Order, we allocated

120 MHz of spectrum for licensed broadband PCS. We divided the licensed

broadband PCS spectrum into three 30 MHz blocks (blocks A, B and C) and

three 10 MHz blocks (blocks D, E and F). We also designated two

different service areas: 493 Basic Trading Areas (``BTAs'') and 51

Major Trading Areas (``MTAs'').\3\ The licenses in frequency blocks A

and B will be awarded on an MTA basis, and the licenses on frequency

blocks C, D, E and F will be awarded on a BTA basis. A total of 2,074

broadband PCS licenses will therefore be issued.\4\ The Broadband PCS

Reconsideration Order sets forth eligibility rules for obtaining

broadband PCS licenses, and establishes construction requirements to

facilitate the provision of PCS services. See Broadband PCS

Reconsideration Order at 102-132, 147-158. By these rules, we intend

to promote competition in the wireless telecommunications market by as

many different qualified providers as the spectrum can reasonably

accommodate and to promote the rapid deployment of the infrastructure

required to provide broadband PCS.

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\3\The 493 BTAs and 51 MTAs used in our broadband PCS licensing

rules have been adapted from the Rand McNally 1992 Commercial Atlas

and Marketing Guide, 123rd Edition, at 38-39.

\4\The Commission has granted pioneer's preference to three

broadband PCS applicants, and stated that the parties awarded

pioneer's preferences may apply for a 30 MHz MTA broadband PCS

license without facing competing applications. See Third Report and

Order in GEN Docket No. 90-314, 9 FCC Rcd 1337, 59 FR 9419, Feb. 28,

1994. If the Commission grants licenses to the three pioneer's

preference grantees, three fewer licenses will be awarded through

competitive bidding.

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II. Executive Summary

7. In this Fifth Report and Order, we set forth the specific

auction procedures for broadband PCS licenses. We have decided to

conduct three auctions: the first for the 99 available PCS licenses in

MTA blocks A and B, the second for the 986 PCS licenses in BTA blocks C

and F, and the third for the remaining 986 PCS licenses in BTA blocks D

and E. That is, the first auction will award licenses for the 30 MHz

blocks for large geographic areas. The second auction will award

licenses for smaller geographic areas for the two blocks that, as

explained below, we have reserved for bidding by relatively small

companies. In these ``entrepreneurs' blocks,'' we have designed

procedures to ensure that small businesses, rural telephone companies

and businesses owned by women and minorities, which we collectively

refer to as designated entities, have ``the opportunity to participate

in the provision'' of PCS, as Congress directed in Section

309(j)(4)(D). In the third auction we will award licenses for the

remaining 10 MHz blocks.

8. We intend to conduct each auction through simultaneous multiple

round bidding with simultaneous stopping rules. Under that approach, no

license awarded until the bidding closes on all licenses in the

auction. We have determined that simultaneous multiple round bidding is

appropriate where the value of the licenses is high compared to the

cost of conducting the auction and the values of licenses are

interdependent. See Second Report and Order at 106-111. We believe the

former condition is met here because other government agencies project

that the boardband PMS licenses will be auctioned for as much as $10.6

billion. See id. at 177. The latter condition is also satisfied

because the record demonstrates, for example, that a license for the

Philadelphia MTA or the Richmond MTA will likely be valued more highly

if it is held in conjunction with the license for the Washington-

Baltimore MTA. We are adopting a variety of rules governing bid

increments and bidding activity to move the auctions toward completion

in a reasonable period of time. We are also retaining the ability to

use other approaches, including sequential auctions for the licenses,

and to make other adjustments to the auction process as necessary.

9. As mentioned above, we establish by this Order a number of rules

to implement Congress's mandate in Section 309(j)(4)(D) that we ensure

that designated entities are ``given the opportunity to participate in

the provision of spectrum-based services'' such as broadband PCS. To

accomplish this objective, Congress directed us to ``consider the use

of tax certificates, bidding preferences, and other procedures.'' 47

U.S.C. Sec. 309(j)(4)(D). We construe this congressional directive as a

mandate that we take the steps that are necessary to ensure that

designated entities have a realistic opportunity to obtain broadband

PCS licenses. We apply that mandate in light of Metro Broadcasting,

Inc. v. FCC, 497 U.S. 547, 564-565 (1990), which held that ``benign

race-conscious measures mandated by Congress * * * are constitutionally

permissible to the extent that they serve important governmental

objectives within the power of Congress and are substantially related

to achievement of those objectives.'' The rules we adopt also further

Congress's objectives, set forth in Section 309(j)(3)(B), of

``promoting economic opportunity and competition and ensuring that new

and innovative technologies are readily accessible to the American

people by avoiding excessive concentration of licenses and by

disseminating licenses among a wide variety of applicants, including

small business, rural telephone companies, and businesses owned by

members of minority groups and women.'' Each of the steps adopted here

is directly related to carrying out Congress's stated objective of

promoting economic opportunity by disseminating broadband PCS licenses

to a wide variety of applicants, including designated entities.

10. The record clearly demonstrates that the primary impediment to

participation by designated entities is lack of access to capital. This

impediment arises for small businesses from the higher costs they face

in raising capital and for businesses owned by minorities and women

from lending discrimination as well. In this regard, it should be noted

that although auctions have many beneficial aspects, they threaten to

erect another barrier to participation by small businesses and

businesses owned by minorities and women by raising the cost of entry

into spectrum-based services.

11. Congress has recognized that ``small business concerns, which

represent higher degrees of risk in financial markets than do large

businesses, are experiencing increased difficulties in obtaining

credit.''\5\ Congress further found that women and minorities face

particularly severe problems in raising capital.\6\ A study of mortgage

lending conducted by the Federal Reserve Bank of Boston in 1992

illustrates how problems arise. That study showed that in cases in

which lenders exercised discretion in deciding whether to make a loan

to a borrower who presented some problems (which includes most mortgage

applicants), that discretion tended to be exercised in favor of whites.

As a result, a minority applicant for a mortgage who was identical in

all pertinent respects to a white applicant nevertheless was 60 percent

more likely to be denied a mortgage loan.\7\ At the same time,

discrimination was difficult to show in any particular case, although

it emerged clearly when data concerning hundreds of mortgage

applications were reviewed.

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\5\Small Business Credit and Business Opportunity Enhancement

Act of 1992, Section 331(a)(3), Pub. L. 102-366, Sept. 4, 1992.

\6\Id. Sections 112(4) and 331(a)(4).

\7\Mortgage Lending in Boston: Interpreting HMDA Data, Federal

Reserve Bank of Boston, Working Paper 92-7 (October 1992).

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12. The first measure we adopt to fulfill Congress's mandate that

we ensure that designated entities have the opportunity to participate

in providing broadband PCS is to reserve the 30 MHz licenses on block C

and the 10 MHz licenses on block F, both of which are to be licensed in

each of the 493 BTAs, for bidding by entities with annual gross

revenues of less than $125 million and total assets of less than $500

million. These limits will exclude many large telecommunications

companies from bidding on these two blocks. We will not allow one

entity to obtain more than 10 percent (i.e., 98) of the licenses on

these two blocks. By excluding large companies from bidding in these

two blocks and by limiting the total number of licenses that one entity

can obtain in these blocks we create numerous opportunities for small

entities to become PCS providers and thereby ensure that broadband PMS

licenses will be disseminated ``among a wide variety of applicants,''

as required by Section 309(j)(3)(B).

13. Reserving blocks C and F for bidding by relatively small

companies will not, by itself, be sufficient to ensure that small

businesses and businesses owned by members of minority groups and women

have the opportunity to obtain broadband PCS licenses. Under the

definition we apply or purposes of this Order, ``small businesses'' are

those with gross revenues not exceeding $40 million, and those

businesses will be at a disadvantage in competing against companies

with gross revenues of as much as $125 million. In addition, businesses

owned by members of minority groups and women face discrimination that

poses additional obstacles for these firms. Accordingly, we take five

related steps within the entrepreneurs' blocks to assist designated

entities in attracting the capital necessary to obtain a broadband PCS

license.

14. First, we will structure our attribution rules to allow those

extremely large companies that may not bid on blocks C and F to invest

in entities that bid on those blocks. More specifically, we will allow

the relatively small companies eligible to bid in these blocks to

obtain investment representing up to 75 percent of their passive equity

from larger companies so long as each investor holds no more than a 25

percent passive equity interest. In addition, eligible businesses owned

by minorities and women may choose to have a single investor, no matter

how large, hold a passive equity interest up to 49.9 percent. These

rules, and others that we establish in this Order, are designed to

enhance access to capital by businesses owned by minorities and women.

15. Second, to encourage large companies to invest in designated

entities and to assist designated entities without large investors to

overcome the additional hurdle presented by auctions, we will make

bidding credits available to designated entities. More specifically,

small businesses will receive a 10 percent bidding credit (or a 10

percent discount on their winning bids). Businesses owned by minorities

and women will receive a 15 percent bidding credit to compensate for

the substantial problems they face in attracting capital. The credits

will be cumulative, so that a business owned by minorities or women

that also qualifies as a small business will receive a 25 percent

bidding credit. Under these rules, it still will be more expensive for

designated entities to participate in the provision of spectrum-based

services than it was before Congress granted us authority to hold

auctions, because they will have to purchase licenses. But by adopting

bidding credits, which are explicitly authorized by Section

309(j)(4)(D), the Commission seeks to promote economic opportunity and

to counterbalance the tendency of auctions to concentrate license

ownership in the hands of several very large companies.

16. Third, we will allow most successful bidders within the

entrepreneurs' blocks to pay for their licenses in installments for

generally the same reasons--encouraging large companies to invest in

designated entities, promoting economic opportunity by assisting

designated entities in overcoming the additional hurdle presented by

auctions, and ensuring that licenses are disseminated widely. In

general, successful bidders will be permitted to defer payments of

principal on their debt to the government for some period. Small

businesses and businesses owned by minorities and women will be

permitted to defer payments of principal for a longer period than other

successful bidders in these blocks. Finally, businesses owned by

minorities and women will be charged a lower interest rate.

17. Fourth, we will extend our tax certificate policies to promote

participation by minorities and women in the provision of broadband

PCS. The holder of a tax certificate is permitted to defer payment of

the capital gains tax that would otherwise be recognized upon the sale

of an investment. Our extension of the tax certificate policy to

broadband PCS will promote involvement by minorities and women in

spectrum-based services in three ways. First, initial investors in such

businesses will be eligible for tax certificates upon the sale of their

investments. We expect that the availability of such favorable tax

treatment will enable minority- and women-owned businesses to attract

investors more easily. Second, holders of broadband PCS licenses will

be able to obtain tax certificates upon the sale of the business to a

company controlled by minorities and women. Third, a cellular operator

that sells its interest in an overlapping cellular system to a

minority- or woman-owned business to come into compliance with our PCS/

cellular cross-ownership rule will be eligible for a tax certificate.

Both the second and third policy will further Congress' objective of

ensuring that spectrum licenses are disseminated widely and, in

particular, to designated entities.

18. Finally, we will reduce the upfront payment for all bidders in

the entrepreneurs' block. Bidders in the other blocks will pay $0.02

per MHz per pop while winners in the entrepreneurs' blocks will receive

a 25 percent discount and pay only $0.015 per MHz per pop as a pre-

auction payment.

19. Congress was also concerned that rural areas not go unserved by

PCS, and therefore directed us to ensure participation in auctions for

spectrum-based services by rural telephone companies who have a history

of service to rural areas and an established infrastructure on which to

build a PCS business effectively. Thus, we establish partitioning rules

in this Order that will allow them to use their existing wireline

network to efficiently and expeditiously provide PCS in rural areas. In

addition, most rural telephone companies will qualify to bid on the

entrepreneurs' blocks, and hence will be eligible for installment

payments. Those rural telephone companies that qualify as small or

minority- or women-owned businesses will also be able to take advantage

of the applicable bidding credits.

20. The rules that we adopt today are designed to ensure that only

bona fide designated entities qualify for the special provisions

established to ensure their participation in broadband PCS. The rules

are designed to enable designated entities to attract passive equity

from non-designated entities, provided that designated entities

maintain control and a substantial entity stake in the ventures at all

times. The Commission will not tolerate ``fronts'' that are controlled

by supposedly passive investors, and we will be vigilant in preventing

abuse of the designated entity provisions. Our rules are also designed

to prevent designated entities from assigning licenses obtained through

the use of these special measures or who otherwise lose their

designated entity status before the end of a required five-year holding

period.

21. The following sections of this Fifth Report and Order discuss

in detail the actions we have outlined above.

III. Auctionability of Broadband PCS

22. Section 309(j)(1) of the Communications Act, as amended, 47

U.S.C. Sec. 309(j)(1), permits auctions only where mutually exclusive

applications for initial licenses or construction permits are accepted

for filing by the Commission and where the principal use of the

spectrum will involve or is reasonably likely to involve the receipt by

the licensee of compensation from subscribers in return for enabling

those subscribers to receive or transmit communications signals. In the

Second Report and Order, we concluded that PCS as a class of service

would satisfy the section 309(j)(1) criteria for auctionability. See

Second Report and Order at 54-58. Specifically, based on the record

in this proceeding and in GEN Docket No. 90-314, we concluded that the

principal use of broadband PCS spectrum satisfied these auction

criteria. Id. at 56. Thus, if mutually exclusive applications for a

broadband PCS license are accepted for filing, we will award that

license through competitive bidding.\8\

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\8\In the Second Report and Order, we addressed the only

commenter who argued that the Commission should not find that the

principal use of PCS is likely to be for the provision of service to

subscribers for compensation. See Second Report and Order at  55-

56. The Commission rejected the argument of Millin Publications, a

publisher of specialized information services that intends to

utilize PCS frequencies on a non-subscription basis, that the

Commission should refrain from making the principal use finding

because PCS does not yet exist. We concluded that the overwhelming

weight of the comments in this proceeding, as well as our experience

with the PCS experiments that we have licensed, reflect that

licensed PCS spectrum is likely to be used principally for the

provision of service to subscribers for compensation. See id. at 

56. We find no basis in the record to depart from this conclusion.

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23. As noted above, we concluded in the Second Report and Order

that the criteria in Section 309(j)(3) will be satisfied by competitive

bidding for broadband PCS licenses, and thus that broadband PCS should

be subject to our competitive bidding procedures. We determined that

the use of competitive bidding to award broadband PCS licenses, as

compared with other licensing methods, will speed the development and

deployment of new services to the public with minimal administrative or

judicial delay, and will encourage efficient use of the spectrum as

required by Section 309(j)(3) (A) and (D). We also concluded that

competitive bidding would recover for the public a portion of the value

of the spectrum, as envisioned in Section 309(j)(3)(C). Id. Finally, in

accordance with Section 309(j)(3)(B), we adopted a set of open

competitive bidding procedures and a menu of special provisions

designed to increase opportunities for designated entities who might

otherwise face entry barriers. Our views on this matter remain

unchanged since adoption of the Second Report and Order. We therefore

affirm in this Order the use of competitive bidding procedures to award

broadband PCS licenses.

IV. Competitive Bidding Design

A. General Competitive Bidding Rules

24. The Second Report and Order established the criteria to be used

in selecting which auction design method to use for each particular

auctionable service. Generally, we concluded that awarding licenses to

those parties who value them most highly will foster Congress' policy

objectives. In this regard, we noted that since a bidder's ability to

introduce valuable new services and to deploy them quickly,

intensively, and efficiently increases the value of a license to that

bidder, an auction design that awards licenses to those bidders with

the highest willingness to pay tends to promote the development and

rapid deployment of new services and the efficient and intensive use of

the spectrum. In articulating our auction design principles we further

stated that: (1) Licenses with strong value interdependencies should be

auctioned simultaneously; (2) multiple round auctions, by providing

bidders with information regarding other bidders' valuations of

licenses, generally will yield more efficient allocations of licenses

and higher revenues, especially where there is substantial uncertainty

as to value; and (3) because they are relatively expensive to implement

and time-consuming, simultaneous and/or multiple round auctions become

less cost-effective as the value of licenses decreases. See Second

Report and Order at 69.

25. Based on the foregoing, we concluded that where the licenses to

be auctioned are interdependent and their value is expected to be high,

simultaneous multiple round auctions would best achieve the

Commission's goals for competitive bidding. See Second Report and Order

at  109-111. We indicated that compared with other bidding

mechanisms, simultaneous multiple round bidding will generate the most

information about license values during the course of the auction and

provide bidders with the most flexibility to pursue back-up strategies.

Thus, we concluded that simultaneous multiple round bidding is most

likely to award interdependent licenses to the bidders who value them

the most. We also indicated that this method will facilitate efficient

aggregation of licenses across spectrum bands, thereby resulting in

vigorous competition among several strong service providers who will be

able rapidly to introduce a wide variety of services highly valued by

end users. Second Report and Order at  106. In addition, we concluded

that because of the superior information and flexibility it provides,

this method is likely to yield greater revenues than other auction

designs. Thus, we found that the use of simultaneous multiple round

auctions would generally be preferred. Id.

26. However, because simultaneous multiple round bidding is likely

to be more administratively complex and costly both for bidders and for

the FCC than sequential or single round bidding, we indicated that we

would use this auction design only where license values are

interdependent and the expected value of the licenses to be auctioned

is high relative to the costs of conducting a simultaneous multiple

round auction. See Second Report and Order at 110-111.

B. Competitive Bidding Design for Broadband PCS Licenses

27. In the Second Report and Order we considered several auction

methods including simultaneous multiple round bidding, sequential

bidding, and combinatorial bidding. We discuss each of these below. We

have chosen to adopt simultaneous multiple round auctions as our

auction methodology for broadband PCS licenses. We believe that for

broadband licenses this method will best meet Congress' goals in

authorizing competitive bidding in section 309(j) of the Communications

Act.

1. Simultaneous Multiple Round Auctions

28. There is considerable support in the record for the use of

simultaneous multiple round auctions, in which two or more licenses are

put up for bid at the same time, and there are multiple bidding rounds

in which bidders have the opportunity to top the high bids from the

previous round. Several comments and studies in the record by academic

auction experts advocate simultaneous multiple round bidding for

broadband PCS. See comments of PacTel Corporation, Attachment of R.

Preston McAfee; comments of Pacific Bell and Nevada Bell, Attachment of

Paul R. Milgrom and Robert B. Wilson; comments of NYNEX, Attachment by

Robert G. Harris and Michael L. Katz. NTIA also recommends simultaneous

multiple round bidding.\9\ Comments of NTIA at 14-16. Other experts

recommend using some combination of sequential and simultaneous

bidding. See comments of Bell Atlantic Personal Communications, Inc.,

Attachment by Barry Nalebuff and Jeremy Bulow; and comments of

Telephone and Data Systems, Attachment by Robert J. Weber. Some

commenters who originally expressed no opinion on the issue or

supported other methods in their comments supported proposals for

simultaneous bidding in their reply comments. See reply comments of

AT&T, GTE Service Corp. and Community Service Telephone Co.

---------------------------------------------------------------------------

\9\NTIA also supports all-or-nothing bids on groups of licenses,

i.e., combinatorial bidding, in conjunction with simultaneous

multiple round bidding.

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29. The analysis in the Second Report and Order also supports

simultaneous multiple round bidding for broadband PCS auctions. We

concluded that multiple round bidding is generally superior to single

round bidding, and that when licenses are interdependent, simultaneous

bidding is generally superior to sequential bidding. As we noted in the

Second Report and Order, multiple-round auctions have the advantage

over single-round auctions insofar as they provide more information to

bidders about the value that other bidders place on licenses,

increasing the likelihood that the licenses are acquired by those who

value them most highly and increasing the revenue likely to be gained

from the auction. Multiple-round auctions are also more likely to be

perceived as open and fair. The disadvantage of multiple round auctions

is that they have higher administrative costs than single round

auctions. Second Report and Order at 82-85.

30. As noted in the Second Report and Order, simultaneous auctions

are more likely than sequential auctions to award interdependent

licenses efficiently because they provide more information about the

value of interdependent licenses and allow the use of that information

because all licenses remain available throughout the bidding process.

Simultaneous auctions are also likely to raise more revenue than

sequential auctions for two reasons. First, they increase the value of

the licenses by facilitating efficient aggregation. Second, because

they provide more information about the value of interdependent

licenses they reduce the propensity of sophisticated bidders to bid

cautiously in order to avoid the ``winner's curse''--the tendency for

the winner to be the bidder who most overestimates the value of the

item up for bid. Simultaneous auctions also eliminate the need to

choose the order in which licenses will be auctioned. The advantage

offered by simultaneous auctions depends on how much interdependence

exists among licenses. Second Report and Order at 89-94. The

disadvantages of simultaneous multiple round auctions appear to be that

they may be difficult to implement and there is little experience in

their use. Second Report and Order at 95.

31. We agree with commenters who support simultaneous multiple

round bidding for awarding broadband PCS licenses. Estimates of total

PCS revenues by the Office of Management and Budget and the

Congressional Budget Office indicate that the value of broadband PCS

licenses will likely be sufficiently high to warrant the use of

simultaneous auctions.\10\ We further believe that the values of most

broadband PCS licenses will be significantly interdependent because of

the desirability of aggregation across spectrum blocks and geographic

regions and because there is a high degree of substitutability among

licenses with the same amount of spectrum and covering the same

geographic area. See Second Report and Order at 90-91. Compared with

other bidding mechanisms, simultaneous multiple round bidding generates

the most information about license values during the course of the

auction and provides bidders with the most flexibility to pursue back-

up strategies, and is therefore most likely to award licenses to the

bidders who value them the most. Simultaneous multiple round auctions

will also facilitate efficient aggregation across spectrum bands, where

permitted, thereby enhancing competition among wireless products and

services.

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\10\A study by the Congressional Budget Office estimated that an

auction for PCS licenses on two 25 MHz nationwide blocks of spectrum

could raise $1.3 billion to $5.7 billion in revenues. Congressional

Budget Office, Auctioning Radio Spectrum Licenses, at 23 (March

1992). The Office of Management and Budget estimated that auctioning

broadband PCS licenses would generate $12.6 billion in revenues.

Budget of the United States Government, Analytical Perspective,

Fiscal Year 1995, at 220 (February 1994).

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32. We recognize, however, that simultaneous multiple round bidding

may involve a greater degree of complexity than other competitive

bidding methods, and that it may present greater operational

difficulties both for the FCC and for bidders, especially where many

bidders are expected to participate. Therefore, we will use a sequence

of simultaneous auctions. Licenses that are highly interdependent will

be grouped together and auctioned simultaneously.

2. Sequential Auctions

33. In a pure sequential auction, whether oral or electronic,

licenses are put up for bid one at a time, so that bidding ends on one

item before it begins on the next item. Sequential multiple round oral

or electronic auctions generate valuable information about earlier

auctioned licenses, which can assist bidders in valuing later auctioned

licenses. If license values are interdependent, however, sequential

oral or electronic auctions are less likely than simultaneous auctions

to award interdependent licenses to the parties who value them most

highly and to result in the efficient aggregation of licenses, because

bidders for licenses that are auctioned early must bid with less

information about the value of licenses to be auctioned later, and they

will have less opportunity to pursue backup bidding strategies. For

these reasons, we conclude that sequential multiple round auctions are

less preferred in the award of broadband PCS licenses than simultaneous

multiple round auctions. Nevertheless, if, as a result of our auction

experience, we determine that the operational costs or complexities

associated with simultaneous multiple round auctions outweigh their

benefits, we may decide instead to employ pure sequential oral or

electronic (multiple round) auctions or a sequence of single combined

oral auctions in which bidding is combined for all licenses in a given

band with the same bandwidth and the same geographic service area. If

such a change becomes necessary, the auction method will be announced

by Public Notice before each auction.

34. If we should decide in the future to use sequential oral or

sequential electronic bidding for relatively homogeneous licenses, we

will employ a single combined auction design. Under this approach, the

Commission will combine bidding for all licenses in the same band with

the same amount of spectrum and same geographic service area.\11\

Licenses will be awarded market by market to the highest bidders until

all the available licenses are exhausted, e.g., two relatively

homogeneous licenses would be awarded to the two highest bidders.

Because broadband PCS licenses may not be perfectly homogeneous (i.e.,

bidders may prefer one frequency over another within the same

geographic region for purposes of efficient aggregation), winning

bidders will be given the opportunity to choose among licenses for

which bidding is combined in descending order of their bid amounts

(i.e., the highest bidder will pick first).

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\11\This approach was proposed by Bell Atlantic. See comments of

Bell Atlantic Personal Communications Inc., Attachment by Barry

Nalebuff and Jeremy Bulow at 4-5. Single combined auctions are used

by the U.S. Department of the Treasury to sell U.S. securities.

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3. Combinatorial Bidding

35. In general terms, combinatorial bidding allows bidders to bid

for multiple licenses as all-or-nothing packages.\12\ Combinatorial

bidding can be implemented with either simultaneous or sequential

auction designs. Although we recognized in the Second Report and Order

that there may be significant benefits associated with combinatorial

bidding, especially in terms of efficient aggregation of licenses, we

concluded that simultaneous multiple round auctions offer many of the

same advantages without the same degree of administrative and

operational complexity and without biasing auction outcomes in favor of

combination bids. See Second Report and Order at  101-105. On

balance, we believe that the advantages of combinatorial bidding appear

unlikely to outweigh the disadvantages. While broadband PCS licenses

are likely to be worth more to some bidders as a part of a package, we

believe that simultaneous multiple round bidding will provide these

bidders with ample opportunity to express the value of interdependent

licenses. Moreover, we conclude that there will not be any extreme

discontinuity in value if some licenses in a package are not obtained.

We believe that the opportunity to acquire licenses in post-auction

transactions and the ability to withdraw bids (upon payment of the bid

withdrawal penalty) will limit the risks associated with failing to

acquire all of the licenses in a desired package. Nevertheless, if,

based on our experience with the initial simultaneous multiple round

auctions and auction experiments, we determine that such auctions do

not result in efficient aggregation of licenses, and if there are

significant advances in the development of combinatorial auctions, we

may, by public notice prior to a specific auction, choose to use

combinatorial bidding techniques in conjunction with simultaneous

multiple round auctions.

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\12\In combinatorial bidding, if a bid for a group of licenses

exceeds the sum of the highest bids for the individual licenses that

comprise the package, then the package bid would win. In the Second

Report and Order we also indicated that if we were to utilize

combinatorial bidding we might institute a premium so that the

combinatorial bid would win only if it exceeded the sum of the bids

for individual licenses by a set amount. See Second Report and Order

at  114. NTIA is the main advocate of combinatorial bidding. See

comments of NTIA, and ex parte submission of NTIA in PP Docket No.

93-253, February 28, 1994.

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C. Bidding Procedures

1. Grouping of Licenses

36. In the Second Report and Order, the Commission concluded that

highly interdependent licenses should be grouped together and put up

for bid at the same time in a multiple round auction. See Second Report

and Order at  106-107. This will facilitate awarding licenses to the

bidders who value them most highly because it will provide bidders

information about the prices of complementary and substitutable

licenses while such licenses are still up for bid. The magnitude of the

benefit of auctioning a group of licenses together in a simultaneous

multiple round auction increases with the degree of interdependence

among the licenses. On the other hand, the Second Report and Order also

noted that the cost and complexity, both for the FCC and for bidders,

of auctioning a very large number of interdependent licenses

simultaneously may outweigh the informational and bidding flexibility

advantages. See Second Report and Order at  107. Accordingly, although

we believe that all broadband PCS licenses are interdependent, we will

not auction them all simultaneously. Instead, we will divide the

licenses into three groups by combining those licenses that are most

closely related so that there will be limited interdependence across

groups. Then we will sequentially conduct a separate simultaneous

multiple round auction for each group. We formed the three groups in

two conceptual steps. First, we separated the ``entrepreneurs''' blocks

(C and F) from all other blocks.\13\ Then, we separated the large

unrestricted blocks (A and B, with 30 MHz of spectrum and MTA

geographic scope) from the small ones (D and E, with 10 MHz of spectrum

and BTA geographic scope).

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\13\As explained in more detail below, we establish economic

eligibility criteria for bidders in blocks C and F.

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37. In the first auction, the 99 available MTA licenses in blocks A

and B will be put up for bid. In the second auction, the 986 BTA

licenses in blocks C and F will be put up for bid. And in the last

auction, the 986 BTA licenses in blocks D and E will be put up for bid.

As explained below, we believe that this grouping strikes a proper

balance among the competing concerns of awarding licenses to the

parties who value them most highly, keeping the auction process simple

and manageable, minimizing administrative delay, and fostering

designated entity participation.

38. Separating the entrepreneurs' blocks (C and F) from all other

blocks entails little loss of efficiency because most firms are likely

to be interested in licenses in either the entrepreneurs' blocks or the

non-restricted blocks, but not both. Large firms cannot bid on

entrepreneurs' licenses, although they may partner with firms that can.

Small firms can bid on all blocks, but are likely to be most interested

in the entrepreneurs' blocks because on these blocks they would not be

placed in the position of bidding against large firms.

39. In addition to reducing the complexity of the auctions,

auctioning block C licenses after the block A and B licenses is likely

to further another objective of auction design--fostering designated

entity participation--by enabling designated entities to more easily

attract partners. Many potential partners may be unwilling to commit

themselves to a partnership arrangement with designated entities prior

to the auction of licenses on the A and B blocks. So, designated

entities that are unable to raise independent financing for at least

the required upfront and down payments may have difficulty

participating in an auction in which block C is put up for bid

simultaneously with blocks A and B. If, however, block C is auctioned

after blocks A and B, we expect that non-designated entities who are

unsuccessful in acquiring MTA licenses on blocks A and B will want to

become partners with or make investments in designated entities so as

to gain an interest in 30 MHz licenses on block C. In addition, the

auction on blocks A and B will produce price information that would be

valuable to designated entities in their business planning.

40. The efficiency loss associated with separating the large

unrestricted blocks (A and B) from the small ones (D and E) depends on

the degree of substitutability and complementarity between licenses in

these two groups. Auctioning licenses on the D and E blocks separately

from those on the A and B blocks may make it more difficult for bidders

to pursue a back-up strategy of combining two 10 MHz licenses in the

same geographic areas as an alternative to acquiring 30 MHz licenses in

the A or B blocks. We believe, however, that this is not likely to be a

widely used strategy, because the licenses are defined on a BTA basis

while the licenses on the A and B blocks are defined on a MTA basis. It

is also possible that some bidders may wish to combine a 10 MHz license

with a 30 MHz license in the same geographic area. Although this

approach would be easier to pursue if blocks A, B, D and E were

auctioned together, we believe that in most cases the amount bidders

would be willing to pay for a block A or B license would not be

strongly affected by whether they were able to acquire a complementary

block D or E license. So auctioning blocks D and E after blocks A and B

would not significantly hinder combining 30 MHz and 10 MHz licenses. We

conclude that the benefits of administrative simplicity from auctioning

license on blocks A and B separately from those on blocks D and E are

likely to outweigh the possible loss of efficiency.

2. Bid Increments

41. In using simultaneous multiple round auctions to award

broadband PCS licenses, it is important to specify minimum bid

increments.\14\ The bid increment is the amount or percentage by which

the bid must be raised above the previous round's high bid in order to

be accepted as a valid bid in the current bidding round. The

application of a minimum bid increment speeds the progress of the

auction and, along with activity and stopping rules, helps to ensure

that the auction comes to closure within a reasonable period of time.

Establishing an appropriate minimum bid increment is especially

important in a simultaneous auction with a simultaneous closing rule.

In that case, all markets remain open until there is no bidding on any

license, and a delay in closing one market will delay the closing of

all markets.

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\14\See Second Report and Order at 124-126. Commenters who

addressed the issue supported minimum bid increments. See comments

of Telephone and Data Systems, Inc. at 24; comments of PacTel

Corporation, Attachment of R. Preston McAfee at 16, 18; comments of

Pacific Bell and Nevada Bell, Attachment of Paul R. Milgrom and

Robert B. Wilson at 19; reply comments of Telephone and Data

Systems, Inc., Attachment of Robert J. Weber at 11; reply comments

of PacTel Corporation, Attachment of R. Preston McAfee at 10; reply

comments of Pacific Bell and Nevada Bell, Attachment of Paul Milgrom

and Robert Wilson, Appendix at 8, 9.

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42. Because we plan to use simultaneous multiple round auctions to

award broadband PCS licenses, we believe that it is necessary to impose

a minimum bid increment to ensure that the broadband PCS auctions

conclude within a reasonable period of time. Commenters addressing the

issue generally supported a minimum bid increment of 5 percent. PacTel,

for example, argues that this amount will provide a reasonable

compromise between the goal of completing the auction quickly and that

of revealing information about the distribution of valuations among

bidders.\15\ As we recognized in the Second Report and Order, it is

important in establishing the amount of the minimum bid increment to

express such increment as the greater of a percentage and fixed dollar

amount. See Second Report and Order at 126. This will ensure a timely

completion of the auction even if bidding begins at a very low dollar

amount. Accordingly, we will impose a minimum bid increment of some

percentage of the high bid from the previous round or a dollar amount

per MHz per pop, whichever is greater, in broadband PCS auctions where

multiple round bidding is used.\16\

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\15\See comments of PacTel, Exhibit by R. Preston McAfee,

Auction Design for Personal Communications Services at 16. Milgrom

and Wilson also recommend a minimum bid increment of 5 percent

(subject to a dollar minimum and maximum) for stage I of the

auction, and smaller percentages for stages II and III. Reply

comments of PacBell, Attachment of Paul Milgrom and Robert Wilson,

Appendix at 8, 9.

\16\``Pop'' refers to each member of the population of the

license service area and ``MHz'' refers to the amount of spectrum,

in megahertz, that the licensee is permitted to use. For example,

for a 30 MHz license with a population of 10 million, if the minimum

bid increment were the greater of 5 percent or $0.02 per MHz per

pop, the minimum bid increment would be $6 million ($0.02 x 30

MHz x 10,000,000) when the high bid from the previous round is less

than $120 million. If the high bid from the previous round exceeds

$120 million, the minimum bid would be 5 percent of the value of

that bid (since 5 percent of a bid over $120 million is greater than

$6 million).

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43. PacTel also suggests, in the context of simultaneous auctions,

that the Commission should vary the bid increment, reducing it as the

number of active bidders declines.\17\ Similarly, PacBell suggests that

the bid increment depend on the stage of the auction, with a 5 percent

increment in stage I, 2 percent in stage II, and 1 percent in stage

III.\18\ This would move the auction quickly at the beginning, when

prices have limited informational content and there is little benefit

to either bidders or the Commission of refined price movements, while

allowing bidders to express small differences in valuations as the

auction nears a close, increasing both efficiency and auction revenues.

Small bid increments also reduce the chances of ties. Where a tie does

occur, the high bidder will be determined by the order in which the

bids were received by the Commission.\19\

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\17\See comments of PacTel, Exhibit by R. Preston McAfee,

Auction Design for Personal Communications Services, at 18.

\18\See reply comments of PacBell, Appendix to Exhibit by Paul

Milgrom and Robert Wilson, auction Rules and Procedures, at 8-9. For

a discussion of auction stages in simultaneous multiple round

auctions see the section on activity rules infra.

\19\See Second Report and Order at 125.

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44. Accordingly, we will start the auction with large bid

increments, and reduce the increments as bidding activity falls. The

minimum bid increment in stage I of the auction will be 5 percent of

the high bid in the previous round or $.02 per MHz per pop, whichever

is greater.\20\ We will reduce the minimum bid increment as we move

through the auction stages, with a minimum bid increment of the greater

of 2 percent or $.01 per MHz per pop in stage II, and the greater of 1

percent or $.005 per MHz per pop in stage III.\21\ The Commission,

however, retains the discretion in broadband PCS auctions to set and,

by announcement before or during the auction, vary the minimum bid

increments for individual licenses or groups of licenses over the

course of an auction if the auction is not moving at an appropriate

pace.

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\20\$0.02 per MHz per pop would represent almost 6 percent of

the value of a license based on an extrapolation from the $10.6

billion estimated value of the 120 MHz of broadband PCS spectrum to

be licensed. See Second Report and Order at 177.

\21\In oral or electronic sequential auctions the auctioneer may

within his or her sole discretion establish and vary the amount of

the minimum bid increment in each round of bidding.

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45. In addition, the Commission will establish a suggested minimum

bid on each license. Bids below the suggested minimum bid will count as

activity under the activity rule (see infra) only if no bids at or

above the suggested minimum bid are received. Initial bids must be

above the minimum bid increment of $.02 per MHz per pop, but may be

below the suggested minimum bid. Once a bid has been received on a

license, the suggested minimum bid is no longer applicable in

subsequent rounds. The amount of the suggested minimum bid may vary by

market size, with a larger minimum bid in larger markets, and will be

announced by public notice prior to each auction. We will establish

suggested minimum bids at no less than $.05 per MHz per pop and not

more than $.20 per MHz per pop. The suggested minimum bid provides

bidders an incentive to start bidding at a substantial fraction of the

final prices of licenses, thus ensuring a rapid conclusion of the

auction, while still allowing for bidding on licenses whose market

values are below the suggested minimum bids.\22\

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\22\If the Commission were to preclude bidding below a starting

minimum bid, a bidder who is interested in only a single license for

which the minimum bid is set above the market value would be forced

to use an activity rule waiver or drop out of the auction under the

activity rules adopted infra.

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3. Stopping Rules for Multiple Round Auctions

46. We also noted in the Second Report and Order that with multiple

round auctions a stopping rule must be established for determining when

the auction is over.\23\ In simultaneous multiple round auctions,

bidding may close separately on individual licenses, simultaneously on

all licenses, or a hybrid approach may be used. Under an individual,

license-by-license approach, bidding closes on each license after one

round passes in which no new acceptable bids are submitted for that

particular license. With a simultaneous stopping rule, bidding remains

open on all licenses until there is no new acceptable bid on any

license. This approach has the advantage of providing bidders full

flexibility to bid for any license as more information becomes

available during the course of the auction, but it may lead to very

long auctions, unless an activity rule (see discussion infra) is

imposed. A hybrid approach combines the first two stopping rules. For

example, we may use a simultaneous stopping rule (along with an

activity rule designed to expedite closure for licenses subject to the

simultaneous stopping rule) for the higher value licenses. For lower

value licenses, where the loss from eliminating some back-up strategies

is less, we may use simpler license-by-license closings. In the Second

Report and Order we recognize that such a hybrid approach might

simplify and speed up the auction process without significantly

sacrificing efficiency or expected revenue. Id.

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\23\See Second Report and Order at 127. Commenters agreed on

the importance of the appropriate stopping rule. PacTel proposes

that bidding on an individual license close if there are no new bids

on that license within a given round, or if there are fewer than two

bids greater than a ``suggested minimum bid.'' Comments of PacTel,

Attachment of R. Preston McAfee at 16-18. Pacific Bell recommends

simultaneous closing of bidding on all licenses when there are no

new acceptable bids on any license. Comments of PacBell, Attachment

of Paul Milgrom and Robert Wilson at 19; reply comments of PacBell,

Attachment of Paul Milgrom and Robert Wilson, Appendix at 5. Bell

Atlantic Personal Communications, on the other hand, asserts that in

simultaneous auctions, no stopping rule can prevent strategic

delays. They provide no evidence for this, however, and do not

discuss any closing rule in detail. In discussing the Milgrom-Wilson

closing rule they fail to account for the Milgrom-Wilson activity

rule, which will reduce the likelihood of delay, and the fail-safe

closing mechanism proposed by Milgrom and Wilson. Reply comments of

Bell Atlantic Personal Communications, Inc., Attachment of Barry J.

Nalebuff and Jeremy I. Bulow at 12.

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47. For broadband PCS we believe that a simultaneous stopping rule

is preferable for all MTA licenses. MTA licenses are expected to have

relatively high values and are fewer in number than BTA licenses, which

will reduce the complexity of implementing a simultaneous stopping

rule. Since we intend to impose an activity rule (as discussed below),

we believe that allowing simultaneous closing for all licenses will

afford bidders flexibility to pursue back-up strategies without running

the risk that bidders will hold back their bidding until the final

rounds. We also intend to use a simultaneous stopping rule for BTA

licenses. However, because of the large number of BTA licenses, we

retain the discretion either to use a hybrid stopping rule or to allow

bidding to close individually for these licenses if as we gain

experience with auctions we determine that simultaneous stopping rules

are too complex to implement for very large numbers of licenses. The

specific stopping rule for ending bidding on BTA licenses will be

announced by Public Notice prior to auction.

48. In addition, we will retain the discretion to declare at any

point after 40 rounds in a simultaneous multiple round auction that the

auction will end after some specified number of additional rounds.\24\

This gives the Commission a means to prevent bidders from continuing to

bid on a few low value licenses solely to delay the closing for all

licenses in an auction with a simultaneous closing rule. This will also

ensure that the Commission can end the auction if it determines that

the benefits from ending the auction, and hence issuing licenses more

rapidly, exceeds the possible efficiency loss from cutting off bidding

on a few low value licenses. If we exercise this option, we favor the

use of three final rounds. Allowing more than one additional round

provides some opportunity for counter-offers, thus reducing the risk

that a license will not be awarded to the party that values it most

highly.

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\24\PacBell proposed that in case of inordinate delays in the

auction the Commission should have the ability to conclude the

auction at any time after 40 rounds by issuing a call for final bids

on the following business day for each of those licenses for which

the highest bid increased in at least 1 of the preceding 3 rounds.

See reply comments of PacBell, Attachment of Paul Milgrom and Robert

Wilson, Appendix at 5.

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49. Moreover, if this fail-safe mechanism is used, we will accept

bids in the final round(s) only for licenses on which the highest bid

increased in at least one of the preceding three rounds. No new bids

will be accepted for other licenses.\25\ There are two reasons not to

take bids on licenses on which there has been no recent bidding. First,

the fact that bidding on an individual license may close will provide

an additional incentive to bid actively and thus speed the conclusion

of the auction. If bids are accepted on all licenses in the final

round(s) there is less cost to a bidder in holding back. Second,

closing bidding on licenses for which activity has ceased ensures high

bidders for those licenses that they will not lose a license without

having an opportunity to make a counter-offer.\26\ This reduces the

uncertainty associated with aggregating licenses that are worth more as

a package than individually. If final bids are accepted on all

licenses, a high bidder on an aggregation of licenses may unexpectedly

lose a critical part of the aggregation and have no chance to regain it

except in the post-auction market, where bargaining or other

transaction costs may be high.

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\25\See reply comments of PacBell, Appendix to attachment by

Milgrom and Wilson at 5. See also Second Report and Order at 130,

n. 106.

\26\Either the auction will close only when bidding ceases on

all licenses, so the high bidder will have an opportunity to respond

to any new bids, or the Commission will call for final bids but not

accept new bids on licenses on which there have been no new bids in

the previous three rounds, so no other bidder will have the

opportunity to outbid the high bidder in a final round.

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4. Duration of Bidding Rounds

50. In simultaneous multiple round auctions for large numbers of

interdependent high-value licenses, bidders may need a significant

amount of time to evaluate back-up strategies and consult with their

principals. For this reason, PacBell proposes one bidding round per day

and PacTel proposes three business days per bidding round for broadband

PCS.\27\ We will provide bidders with a single business day to submit

bids, and conduct one round of bidding each business day.\28\ However,

we reserve the discretion to vary, by public notice or announcement,

the duration of bidding rounds or the interval at which bids are

accepted (e.g., run two or more rounds per day rather than one), in

order to move the auction toward closure more quickly. We are more

likely to conduct more than one round per day early in an auction than

towards the end of an auction. At early stages of an auction prices

will be low and contain relatively little information, so bidders will

need less time to deliberate. It is in the final stages of an auction,

when the consequences of bidding decisions are greatest, that bidders

need the most time to deliberate. We will indicate either by Public

Notice prior to an auction, or by announcement during an auction any

changes to the duration of and intervals between bidding rounds.

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\27\Comments of PacBell, Attachment by Milgrom and Wilson at 19;

comments of PacTel, Attachment by McAfee at 16.

\28\With one round per day, the auction may take weeks to

complete. This should not impose an excessive burden on bidders,

however, because bids may be submitted by telephone or by a computer

connected to a telephone line, so bidders need not have a

representative in Washington throughout the auction.

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5. Activity Rules

51. As discussed above, in order to ensure that simultaneous

auctions with simultaneous stopping rules close within a reasonable

period of time and to increase the information conveyed by bid prices

during the auction, we believe that it is necessary to impose an

activity rule to prevent bidders from waiting until the end of the

auction before participating. Because simultaneous stopping rules

generally keep all licenses open for bidding as long as anyone wishes

to bid, they also create an incentive for bidders to hold back until

prices approach equilibrium before making a bid. As noted above, this

could lead to very long auctions. Delaying serious bidding until late

in the auction also reduces the information content of prices during

the course of an auction. Without an activity rule, bidders cannot know

whether a low level of bidding on a license means that the license

price is near its final level or if instead many serious bidders are

holding back and may bid up the price later in the auction.\29\ An

activity rule is less important when licenses close one-by-one because

failure to participate in any given round may result in losing the

opportunity to bid at all, if that round turns out to be the last.

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\29\See ex parte presentation by Paul Milgrom on behalf of

PacBell, June 21, 1994.

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52. In the Second Report and Order we adopted the Milgrom-Wilson

activity rule as our preferred activity rule where a simultaneous

stopping rule is used. See Second Report and Order at 144-145. The

Milgrom-Wilson approach encourages bidders to participate in early

rounds by limiting their maximum participation to some multiple of

their minimum participation level. Bidders are required to declare

their maximum eligibility in terms of MHz-pops, and make an upfront

payment equal to $0.02 per MHz-pop.\30\ (See discussion of upfront

payments infra.) That is, in each round bidders will be limited to

bidding on licenses encompassing no more than the number of MHz-pops

covered by their upfront payment. Licenses on which a bidder is the

high bidder from the previous round count against this bidding limit.

Under this approach, bidders will have the flexibility to shift their

bids among any licenses for which they have applied so long as, within

each round, the total MHz-pops encompassed by those licenses does not

exceed the total number of MHz-pops on which they are eligible to bid.

Bidders will be able to secure the option to participate at whatever

maximum level they deem appropriate by making a sufficient upfront

payment. To preserve their maximum eligibility, however, bidders will

be required to maintain activity during each round of the auction. A

bidder is considered active on a license in the current round if the

bidder has submitted an acceptable bid for that license in the current

round, or has the high bid for that license from the previous round, in

which case, the bidder does not need to bid on that license in the

current round to be considered active on that license.

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\30\The number of ``MHz-pops'' is calculated by multiplying the

population of the license service area by the amount of spectrum

authorized by the license. We use the terms ``per MHz-pop'' and

``per MHz per pop'' interchangeably.

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53. Under the Milgrom-Wilson proposal, the minimum activity level,

measured as a fraction of the bidder's eligibility in the current

round, will increase during the course of the auction.\31\ Milgrom and

Wilson divide the auction into three stages. During the first stage of

the auction, a bidder is required to be active on licenses encompassing

one-third of the MHz-pops for which it is eligible. The ``penalty'' for

falling below that activity level is a reduction in eligibility. At

this stage, bidders will lose three MHz-pops in eligibility for each

MHz-pop below the minimum required activity level.\32\ In the second

stage, bidders are required to be active on two-thirds of the MHz-pops

for which they are eligible. The penalty for falling below that

activity level is a loss of 1.5 MHz-pops in eligibility for each MHz-

pop below the minimum required activity level. In the third stage,

bidders are required to be active on licenses encompassing all of the

MHz-pops for which they are eligible. The penalty for falling below

that activity level is a loss of one MHz-pop in eligibility for each

MHz-pop below the minimum required activity level. Thus in the final

stage, each bidder retains eligibility (for the next round) equal to

the MHz-pops for which it is an active bidder in the current round.

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\31\Absent waivers (discussed infra), a bidder's eligibility (in

terms of MHz-pops) in the current round is determined by the

bidder's activity level and eligibility in the previous round. In

the first round, however, eligibility is determined by the bidder's

upfront payment and is equal to the upfront payment divided by $.02

per MHz-pop.

\32\An alternative way to state the rule for determining

eligibility in stage I of an auction is that each bidder will be

eligible to bid in the next round on three times the MHz-pops for

which it is an active bidder in the current round, or the MHz-pops

for which it is eligible in the current round, whichever is less.

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54. The auction will start in stage I and move from stage I to

stage II when, in each of three consecutive rounds of bidding, the high

bid has increased on 10 percent or less of the spectrum (measured in

terms of MHz-pops) being auctioned.\33\ The auction will move from

stage II to stage III when the high bid has increased on 5 percent or

less of the spectrum being auctioned (measured in terms of MHz-pops),

in each of three consecutive rounds of bidding in stage II.\34\ In

order to speed up an auction, the Commission may also announce, at any

time after the initial 15 rounds, that the next stage of the auction

(with a higher minimum participation level) will begin in the next

bidding round.\35\ Moreover, if as the Commission gains experience with

auctions that use activity rules it determines that such auctions tend

to move too slowly, it may, by public notice prior to a specific

auction, increase the activity levels at which that auction moves

between stages. Conversely, if the Commission determines that auctions

tend to move too quickly, depriving bidders of sufficient time to

deliberate and pursue back-up strategies, it may decrease the activity

levels at which an auction moves between stages.

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\33\The transition rule may also be defined in terms of the

``auction activity level''--the sum of the MHz-pops of those

licenses whose highest bid increased in the current round, as a

percentage of the total MHz-pops of all licenses in that auction.

(Note that this definition differs slightly from that used by

Milgrom and Wilson. See reply comments by PacBell, Appendix to

attachment by Milgrom and Wilson at 1.) The auction moves from stage

I to stage II when the auction activity level is less than or equal

to 10 percent for three consecutive rounds in stage I. The auction

moves from stage II to stage III when the auction activity level is

less than or equal to 5 percent for three consecutive rounds in

stage II. For example, if two nationwide 30 MHz blocks of spectrum

are put up for bid and the national population is approximately 250

million, a total of approximately 15,000 million MHz-pops would be

available in the auction. If in stage I of the auction, the high bid

increases on licenses encompassing less than 1,500 million MHz-pops

for three consecutive rounds, the auction moves to stage II. This

would be the case, for example, if in three consecutive rounds new

bids were received on only a license for the New York MTA (26

million pops) and a license for the Los Angeles MTA (19 million

pops), since the two licenses encompass a total of 1,350 million

MHz-pops. Once in stage II, if in each of three consecutive rounds

new acceptable bids are received on licenses encompassing less than

750 million MHz-pops, the auction would move to stage III.

\34\Once an auction is in stage II, it cannot revert to stage I.

Once an auction is in stage III, it remains there.

\35\Moving to stage II prematurely might result in an auction

moving too quickly to allow adequate time for consideration and may

excessively limit the ability of bidders to pursue alternative

backup strategies. See Second Report and Order at 142.

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55. Finally, to avoid the consequences of clerical errors and to

compensate for unusual circumstances that might delay a bidder's bid

preparation or submission on a particular day, Milgrom and Wilson

recommend permitting each bidder to request and automatically receive a

waiver of the activity rule once every three rounds. We believe that

some waiver procedure is a critical element of the Milgrom-Wilson

activity rule, since the Commission would not wish to reduce a bidder's

eligibility due to an accidental act or circumstances not under the

bidder's control.

56. We believe that the Milgrom-Wilson approach will best achieve

the Commission's goals of affording bidders flexibility to pursue

backup strategies, while at the same time ensuring that simultaneous

auctions are concluded within a reasonable period of time. Accordingly,

we plan to impose such an activity rule in conjunction with a

simultaneous stopping rule to award higher value broadband PCS

licenses. We intend, however, to use a simpler waiver procedure than

that proposed by Milgrom and Wilson. We will permit bidders one

automatic waiver from the activity rule during each stage of an

auction. A waiver will permit a bidder to maintain its eligibility at

the same level as in the round for which the waiver is submitted.\36\ A

waiver may be submitted either in the round in which bidding falls

below the minimum required level to maintain (for the next round) the

same eligibility as in that round, or prior to submitting a bid in the

next round. If an activity rule waiver is entered in a round in which

no other bidding activity occurs, the auction will remain open.\37\

However, an activity rule waiver entered after a round in which no

other bidding activity occurs will not reopen the auction. If, as we

gain both experimental and actual auction experience, we determine that

permitting one automatic waiver per auction stage is insufficient to

prevent the inadvertent reduction in eligibility of serious bidders, we

may, by public notice prior to a specific broadband auction, increase

the number of automatic activity rule waivers, or instead allow one

automatic waiver during a specified number of bidding rounds.

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\36\An activity rule waiver cannot be used to correct an error

in the amount bid.

\37\If, however, we determine, based on evidence from

experimental and actual auctions, that this is likely to excessively

delay the close of an auction or result in other adverse strategic

manipulation of an auction, we any announce by public notice prior

to a specific broadband auction that submission of a waiver will not

keep an auction open under any circumstances.

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57. Furthermore, if, as we gain experience with auctions, we

determine that the Milgrom-Wilson three stage activity rule is too

complicated or costly to administer, we may alternatively impose a less

complex activity rule. See Second Report and Order at  144. We will

announce by Public Notice before each auction the activity rule that

will be employed in that particular auction.

V. Procedural, Payment, and Penalty Issues

A. Pre-Auction Application Procedures

58. In the Second Report and Order, the Commission established

general competitive bidding rules and procedures which we noted may be

modified on a service-specific basis. See 47 CFR Part 1, subpart Q. As

discussed below, we will generally follow the procedural, payment and

penalty rules established in the Second Report and Order with certain

minor modifications designed to address the particular characteristics

of the broadband PCS service. These rules are structured to ensure that

bidders and licensees are qualified and will be able to construct

systems quickly and other service to the public. By ensuring that

bidders and license winners are serious, qualified applicants, these

rules will minimize the need to re-auction licenses and prevent delays

in the provision of broadband PCS service to the public. In addition,

as we proposed in the Notice at  129, we adopt general procedural and

processing rules based on Part 22 of the Commission's Rules.

59. Section 309(j)(5) provides that no party may participate in an

auction ``unless such bidder submits such information and assurances as

the Commission may require to demonstrate that such bidder's

application is acceptable for filing.'' 47 U.S.C. Sec. 309(j)(5).

Moreover, ``[n]o license shall be granted to an applicant selected

pursuant to this subsection unless the Commission determines that the

applicant is qualified pursuant to [Section 309(a)] and Sections 308(b)

and 310'' of the Communications Act. id. As the legislative history of

Section 309(j) makes clear, the Commission may require that bidders'

applications contain all information and documentation sufficient to

demonstrate that the application is not in violation of Commission

rules, and applications not meeting those requirements may be dismissed

prior to the competitive bidding. See H.R. Rep. No. 111, 103d Cong.,

1st Sess. 258 (1993) (H.R. Rep. No. 103-111).

60. In the MPRM, we proposed that all parties interested in

participating in an auction for spectrum licenses would be required to

file a short-form application (modeled on the Commission's

``Transmittal Sheet for Cellular Applications''), and asked whether

applicants should also be required to submit a long-form application

prior to the auction, or whether the long-form application should be

submitted subsequent to the auction. NPRM at  97. The comments

generally agreed that we should require only a short-form application

prior to competitive bidding, and that only winning bidders should be

required to submit a long-form license application after the auction.

Because we believed that such a procedure would fulfill the statutory

requirements and objectives and adequately protect the public interest,

we incorporated these requirements into the rules adopted in the Second

Report and Order. See 47 CFR Secs. 1.2105 and 1.2107. We will extend

the application of these rules to the competitive bidding process for

broadband PCS.

61. We will be guided by the following procedures in conducting

broadband PCS auctions. The Commission will release an initial Public

Notice announcing that it will accept applications for specific

broadband PCS licenses. This initial Public Notice will specify the

licenses and identify the time and place of an auction in the event

that mutually exclusive applications are filed. The Public Notice also

will specify the method of competitive bidding to be used, including

applicable bid submission procedures, stopping rules and activity

rules, as well as the deadline by which short-form applications must be

filed, and the amounts and deadlines for submitting the upfront

payment. See Second Report and Order at  164. We will not accept

applications filed before or after the dates specified in Public

Notices. Applications submitted before release of a Public Notice

announcing the availability of particular license(s), or before the

opening date of the filing window specified therein, will be returned

as premature. Applications submitted after the deadline specified by

Public Notice will be dismissed, with prejudice, as untimely. Soon

after release of the initial Public Notice, an auction information

package will be made available to prospective bidders.

62. Bidders will be required to submit short-form applications on

FCC Form 175 (and FCC Form 175-S, if applicable), together with any

applicable filing fee\38\ by the date specified in the initial Public

Notice.\39\ The short-form applications will require applicants to

provide the information required by Section 1.2105(a)(2) of the

Commission's Rules, 47 CFR Sec. 1.2105(a)(2). Specifically, each

applicant will be required to specify on its Form 175 applications

certain identifying information, including its status as a designated

entity (if applicable), its classification (i.e., individual,

corporation, partnership, trust or other), the markets and frequently

blocks for which it is applying, and assuming that the licenses will be

auctioned, the names of persons authorized to place or withdraw a bid

on its behalf. In addition, applicants will be required to provide

detailed ownership information (see Section 24.813(a) of the

Commission's Rules) and identify all parties with whom they have

entered into any consortium arrangements, joint ventures, partnerships

or other agreements or understandings which relate to the competitive

bidding process. Applicants will also be required to certify that they

have not entered and will not enter into any explicit or implicit

agreements, arrangements or understandings with any parties, other than

those identified, regarding the amount of their bid, bidding strategies

or the particular properties on which they will or will not bid. In

addition, applicants for licenses in the entrepreneurs' blocks will be

required, as part of their short-form applications, to certify that

they are eligible to bid on and win licenses in those blocks. Among

other things, this means that they are in compliance with our PCS-

cellular and PCS-PCS cross-ownership limitations. As we indicated in

the Second Report and Order, if the Commission receives only one

application that is acceptable for filing for a particular license, and

thus there is no mutual exclusivity, the Commission by Public Notice

will cancel the auction for this license and establish a date for the

filing of a long-form application, the acceptance of which will trigger

the procedures permitting petitions to deny. See Second Report and

Order at  165.

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\38\Because Section 8 of the Communications Act, 47 U.S.C.

Sec. 158, does not currently afford the Commission authority to

charge an application fee in connection with PCS applications,

broadband PCS applicants will not be required to submit a fee with

their short-form application. However, the Commission has requested

that Congress amend Section 8 of the Communications Act to provide a

specific application fee for PCS services. If the Commission

receives application fee authority, the general rules governing

submission of fees will apply. See 47 CFR Sec. 1.1101 et seq. These

rules currently provide for dismissal of an application if the

application fee is not paid, is insufficient, is in improper form,

is returned for insufficient funds or is otherwise not in compliance

with our fee rules. Whenever funds are remitted to the Commission,

applicants also must file FCC Form 159.

\39\Applicants should submit one paper original and one

microfiche original of their application, as well as two microfiche

copies.

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63. A number of commenters in this proceeding objected to our

original tentative conclusion that short-form applications should be

judged by a letter-perfect standard. See NPRM at  100. Parties

proposed that the Commission allow a brief period for correcting errors

in short-form applications. See, e.g., comments of AT&T at 30-31,

BellSouth at 36-37. As we stated in the Second Report and Order, we

believe that the public interest would be better served by encouraging

maximum bidder participation in auctions. See Second Report and Order

at  167. Therefore, we will provide applicants with an opportunity to

correct minor defects in their short-form applications (e.g.,

typographical errors, incorrect license designations, etc.) prior to

the auction. Applicants will not be permitted until after the auction,

however, to make any major modifications to their applications,

including cognizable ownership changes or changes in the identification

of parties to bidding consortia. In addition, applications that are not

signed will be dismissed as unacceptable.

64. After reviewing the short-form applications, the Commission

will issue a second Public Notice listing all defective applications,

and applicants whose applications contain minor defects will be given

an opportunity to cure defective applications and resubmit a correction

version.\40\ After reviewing the corrected applications, the Commission

will release a third Public Notice announcing the names of all

applicants whose applications have been accepted for filing. These

applicants will be required to submit an upfront payment to the

Commission, as discussed below.

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\40\On the date set for submission of corrected applications

that on their won discover minor errors in their applications also

will be permitted to file corrected applications.

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B. Upfront Payment

65. The comments in this proceeding generally supported the

Commission's proposal to require prospective bidders to make

substantial upfront payments prior to auction. See, e.g., comments of

Comcast at 18, PacBell at 28, Nextel at 16, and AWCC at 31-32.

Consistent with the weight of the comments, we concluded in the Second

Report and Order that a substantial upfront payment prior to the

beginning of an auction is necessary to ensure that only serious and

qualified bidders participate. See Second Report and Order at  171. By

requiring such a payment we also help to ensure that any bid withdrawal

or default penalties are paid. These considerations apply to broadband

PCS auctions. We will therefore require all broadband PCS auction

participants to tender in advance to the Commission a substantial

upfront payment as a condition of bidding.

66. In the Notice, we proposed to require upfront payments based on

a $0.02 per MHz per pop formula. Though some commenters favor a fixed

upfront payment set by the Commission prior to the auction,\41\ most

support the Commission's proposed $0.02 per MHz per pop formula, which

would enable prospective bidders to tailor their upfront payment to

their bidding strategies.\42\ Commenters suggest that there should be

some fixed minimum on the amount of upfront payment made prior to

auction (suggestions range from $2,500 to $100,000 for different

services).\43\ Some commenters also favor setting a maximum upfront

payment, pointing out that our proposed formula yields very high

payments in the broadband PCS context.\44\

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\41\See, e.g., comments of Edward M. Johnson at 2; and LuxCel

Group, Inc. at 8.

\42\See, e.g., comments of PacBell at 28; Telocator (now PCIA)

at 13; CTIA at 30; and Rochester Telephone Corporation at 13.

\43\See, e.g., comments of Telocator at 20-21; Cellular

Communications, Inc. at 15; AT&T at 34; and BellSouth at 41.

\44\See, e.g., comments of Southwestern Bell at 38-40 (arguing

generally for a maximum deposit of $50 million for all markets) and

AT&T at 34 (supporting a maximum upfront payment of $5 million, with

a down payment following the auction).

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67. We believe that the standard upfront payment formula of $0.02

per pop per MHz for the largest combination of MHz-pops a bidder

anticipates bidding on in any single round of bidding is appropriate

for broadband PCS services.\45\ Using this formula will provide bidders

with the flexibility to change their strategy during an auction and to

bid on a larger number of smaller licenses or a smaller number of

larger licenses, so long as the total MHz-pops combination does not

exceed that amount covered by the upfront payment. For example, when we

auction licenses covering the nation simultaneously, a bidder would not

be required to file an upfront payment representing national coverage

unless it intended to bid on licenses covering the entire nation in a

single bidding round. The $0.02 per MHz per pop formula also works well

with the Milgrom-Wilson activity rule that we plan to employ in

broadband PCS auctions, as described in Section III above. In the

initial Public Notice issued prior to each auction, we will announce

population information corresponding to each license to enable bidders

to calculate their upfront payments.

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\45\As discussed in Section VII, infra, designated entities will

be subject to a lesser upfront payment requirement of $0.015 per MHz

per pop. Further, we retain the flexibility to consider using a

simpler payment requirement if circumstances warrant.

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68. As we indicated in the Second Report and Order, we will not set

a maximum on upfront payments.\46\ We decline to do so because we wish

to ensure that those bidding on large numbers of valuable broadband PCS

licenses are bidding in good faith and are financially capable of

constructing those systems quickly. We recognize that upfront payments

for broadband PCS licenses may amount to millions of dollars, but we do

not believe that it is unreasonable to expect prospective bidders to

tender such sums given the expected overall value of some of these

licenses and the expected financial requirements to construct the

systems. Indeed, such a requirement is necessary to ensure the

seriousness of bidders for these valuable licenses.

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\46\See Second Report and Order at 179.

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69. In the Second Report and Order, we accepted commenters'

suggestions and established a general minimum upfront payment of $2,500

to ensure that the use of our preferred formula would result in a

substantial enough payment that bidders would be deterred from making

frivolous bids.\47\ Such a minimum upfront payment is needed in

connection with auctions where the $0.02 per MHz per pop formula would

yield a comparatively small upfront payment (such as those for

narrowband PCS licenses in BTAs). Because of the wider bandwidth of

broadband PCS licenses, however, this minimum upfront payment will not

be relevant in auctions for this service.\48\

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\47\Id. at 180.

\48\The smallest bandwidth that a broadband PCS licensee will be

authorized to use is 10 MHz, so a $2,500 upfront payment would

result for a license area with a population of only 12,500 persons.

The least populous BTA in the United States (Williston, North

Dakota) has a population of approximately 27,500, and the upfront

payment for a 10 MHz license in that BTA would be approximately

$5,500.

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70. For broadband PCS auctions, we will follow the procedures for

submission of upfront payments outlined in the Second Report and Order.

Applicants whose short-form applications have been accepted for filing

will be required to submit the full amount of their upfront payment to

the Commission's lock-box bank by a date certain, which will be

announced in a Public Notice and generally will be no later than 14

days before the scheduled auction.\49\ After the Commission receives

from its lock-box bank the names of all applicants who have submitted

timely upfront payments, the Commission will issue a Public Notice

announcing the names of all applicants that have been determined to be

qualified to bid. An applicant who fails to submit a sufficient upfront

payment to qualify it to bid on any license being auctioned will not be

identified on this Public Notice as a qualified bidder, and it will be

prohibited from bidding in the auction. That is, we will require that

applicants for broadband PCS licenses submit a sufficient upfront

payment to reflect the MHz-pops of the smallest license being put up

for bid in a particular auction.\50\

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\49\Upfront payments must be made by wire transfer or by

cashier's check drawn in U.S. dollars from a financial institution

whose deposits are insured by the Federal Deposit Insurance

Corporation and must be made payable to the Federal Communications

Commission.

\50\For example, in our first broadband PCS auction (the 30 MHz

MTA licenses on blocks A and B), the smallest upfront payment that

may be submitted to qualify an applicant to bid will be calculated

by multiplying the population of the least populous MTA (American

Samoa: population 47,000) times 30 times two cents, or $28,200. It

should be noted, however, that this minimal upfront payment will

entitle the bidder to bid only on a license to serve American Samoa.

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71. Although it would be simpler to require the submission of

upfront payments at the same time short-form applications are filed, we

agree with those commenters that argued that they should not be

required to commit the large sums that will likely be involved in

broadband PCS upfront payment for longer than is necessary.

Accordingly, applicants will not be required to tender upfront payments

with their short-form applications. Instead, as noted above, upfront

payments will be due by a date specified by Public Notice, but

generally no later than 14 days before a scheduled auction. This period

should be sufficient to allow the Commission adequate time to process

upfront payment data and release a Public Notice listing all qualified

bidders, but not so long as to impose undue burdens upon bidders. The

rules set forth in Section 1.2106 of the Commission's Rules concerning

upfront payments will be applicable in broadband PCS auctions. Each

qualified bidder will be issued a bidder identification number and

further information and instructions regarding the auction procedures.

During an auction, bidders will be required to provide their bidder

identification numbers when submitting bids.

C. Payment and Procedures for Licenses Awarded by Competitive Bidding

1. Down Payment

72. The Second Report and Order established a 20 percent down

payment by winning bidders to discourage default between the auction

and licensing and to ensure payment of the penalty if such default

occurs. We concluded that a 20 percent down payment was appropriate to

ensure that auction winners have the necessary financial capabilities

to complete payment for the license and to pay for the costs of

constructing a system, while at the same time not being so onerous as

to hinder growth or diminish access. Most of the commenters addressing

this issue generally support our proposal that winning bidders increase

their deposits with the Commission up to an amount equalling 20 percent

of their winning bid or bids. See, e.g., comments of BellSouth at 43-

44, PageNet at 35-36, and Telocator at 13. Some commenters feel that a

20 percent down payment requirement would be too high. See comments of

Sprint at 18 (prefers a 10 percent down payment).

73. We believe that the reasoning that led us to conclude that 20

percent is the appropriate down payment applies to broadband PCS

auctions. We therefore will require that, with the exception of bidders

eligible for installment payments in the entrepreneurs' blocks (see

Section VII, infra), winning bidders in broadband PCS auctions

supplement their upfront payments with a down payment sufficient to

bring their total deposits up to 20 percent of their winning

bid(s).\51\ Winning bidders will be required to submit the required

down payment by cashier's check or wire transfer to our lock-box bank

by a date to be specified by Public Notice, generally within five (5)

business days following the close of bidding. All auction winners will

generally be required to make full payment of the balance of their

winning bids within five (5) business days following award of the

license. Grant of the license will be conditioned on this payment.

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\51\If the upfront payment already tendered by a winning bidder,

after deducting any bid withdrawal and default penalties due,

amounts to 20 percent or more of its winning bids, no additional

deposit will be required. If the upfront payment amount on deposit

is greater than 20 percent of the winning bid amount after deducting

any bid withdrawal and default penalties due, the additional monies

will be refunded. If a bidder has withdrawn a bid or defaulted but

the amount of the penalty cannot yet be determined, the bidder will

be required to make a deposit of 20 percent of the amount bid on

such licenses. When it becomes possible to calculate and assess the

penalty, any excess deposit will be refunded. Upfront payments will

be applied to such deposits and to bid withdrawal and default

penalties due before being applied toward the bidder's down payment

on licenses the bidder has won and seeks to acquire.

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74. An auction winner that is eligible to make payments through an

installment plan (see Section VII, infra) will be subject to different

payment requirements. Such an entity will be required to bring its

deposits with the Commission up to only 5 percent of its winning bid

after the bidding closes, and will pay an additional 5 percent of its

winning bid to the Commission after a license is granted.

2. Bid Withdrawal and Default Penalties

75. As we discussed in the Second Report and Order, it is

critically important to the success of our system of competitive

bidding that potential bidders understand that there will be a

substantial penalty assessed if they withdraw a high bid, are found not

to be qualified to hold licenses or default on payment of a balance

due. There was substantial support in the comments for the notion that

the Commission is authorized to and should order forfeiture of upfront

and down payments if the auction winner later defaults or is

disqualified. See, e.g., comments of CTIA at 29-30, AT&T at 35, n.43,

PageNet at 35-36, Cook Inlet at 47, and BellSouth at 42-44. We

concluded, however, that forfeiture of all amounts that a bidder may

have on deposit with the Commission may, in some circumstances, be too

severe a penalty and would not necessarily be rationally related to the

harm caused by withdrawal, default or disqualification. See Second

Report and Order at  197.

76. This logic applies to broadband PCS auctions, so for these

auctions we will employ the bid withdrawal, default and

disqualification penalties adopted in the Second Report and Order,

which are reflected in Sections 1.2104(g) and 1.2109 of the

Commission's Rules. Any bidder who withdraws a high bid during an

auction before the Commission declares bidding closed will be required

to reimburse the Commission in the amount of the difference between its

high bid and the amount of the winning bid the next time the license is

offered by the Commission, if this subsequent winning bid is lower than

the withdrawn bid.\52\ No withdrawal penalty will be assessed if the

subsequent winning bid exceeds the withdrawn bid. After bidding closes,

a defaulting auction winner (i.e., a winner who fails to remit the

required down payment within the prescribed time, fails to pay for a

license, or is otherwise disqualified) will be assessed an additional

penalty of three percent of the subsequent winning bid or three percent

of the amount of the defaulting bid, whichever is less. See 47 CFR

Secs. 1.2104(g) and 1.2109. The additional three percent penalty is

designed to encourage bidders who wish to withdraw their bids to do so

before bidding ceases. We will hold deposits made by defaulting or

disqualified auction winners until full payment of the penalty.\53\ We

believe that these penalties will adequately discourage default and

ensure that bidders have adequate financing and that they meet all

eligibility and qualification requirements. As we explained in the

Second Report and Order, we further believe that this approach is well

within our authority under both Section 309(j)(4)(B) and Section 4(i)

of the Communications Act, 47 U.S.C. Sec. 154(i), as it is clearly

necessary to carry out the rapid deployment of new technologies through

the use of auctions.\54\

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\52\If a license is re-offered by auction, the ``winning bid''

refers to the high bid in the auction in which the license is re-

offered. If a license is re-offered in the same auction, the winning

bid refers to the high bid amount, made subsequent to the

withdrawal, in that auction. If the subsequent high bidder also

withdraws its bid, that bidder will be required to pay a penalty

equal to the difference between its withdrawn bid and the amount of

the subsequent winning bid the next time the license is offered by

the Commission. If a license which is the subject of withdrawal or

default is not re-auctioned, but is instead offered to the highest

losing bidders in the initial auction, the ``winning bid'' refers to

the bid of the highest bidder who accepts the offer. Losing bidders

would not be required to accept the offer, i.e., they may decline

without penalty. We wish to encourage losing bidders in simultaneous

multiple round auctions to bid on other licenses, and therefore we

will not hold them to their losing bids on a license for which a

bidder has withdrawn a bid or on which a bidder has defaulted.

\53\In rare cases in which it would be inequitable to retain a

down payment, we will entertain requests for waiver of this

provision.

\54\See Second Report and Order at  198.

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77. In addition, if a default or disqualification involves gross

misconduct, misrepresentation or bad faith by an applicant, the

Commission may declare the applicant and its principals ineligible to

bid in future auctions, and may take any other action that it deems

necessary, including institution of proceedings to revoke any existing

licenses held by the applicant. See Second Report and Order at 198.

3. Re-Offering Licenses When Auction Winners Default

78. In the event that an auction winner defaults or is otherwise

disqualified, the Commission must determine whether to hold a new

auction or simply offer the license to the second-highest bidder.

Parties commenting on this issue generally favored re-auctioning the

license, pointing out that changing market and even technological

developments since the initial auction may change the amounts that

bidders are willing to pay for a license, especially if the intervening

period is relatively long. They urge that any re-auction be open to new

bidders, arguing that such a procedure would reduce the incentive of

losing bidders to file unmeritorious petitions to deny against the

auction winner. See, e.g., comments of BellSouth at 37, Utilities

Telecommunications Council at 21.

79. As we stated in the Second Report and Order, we believe that,

as a general rule, when an auction winner defaults or is otherwise

disqualified after having made the required down payment, the best

course of action is to re-auction the license. See Second Report and

Order at 204. Although we recognize that this may cause a brief delay

in the initiation of service to the public, during the time between the

original auction and the disqualification circumstances may have

changed so significantly as to alter the value of the license to

auction participants as well as to parties who did not participate. In

this situation, awarding licenses to the parties that value them most

highly can best be assured through a re-auction. However, if the

default occurs within five (5) business days after the bidding has

closed, the Commission retains the discretion to offer the license to

the second highest bidder at its final bid level, or if that bidder

declines the offer, to offer the license to other bidders (in

descending order of their bid amounts) at the final bid levels.\55\

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\55\If only a small number of relatively low-value licenses are

to be re-auctioned and only a short time has passed since the

initial auction, the Commission may choose to offer the license to

the highest losing bidders because the cost of running another

auction may exceed the benefits.

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80. If a new auction becomes necessary because of default or

disqualification more than five (5) business days after bidding has

ended, the Commission will afford new parties an opportunity to file

applications. One of our primary goals in conducting auctions is to

assure that all serious interested bidders are in the pool of qualified

bidders at any re-auction. We believe that allowing new applications

will promote achievement of this goal, which outweighs the short delay

that we recognize may result from allowing new applications in a re-

auction. Indeed, if we were not to allow new applicants in a re-

auction, interested parties might be forced into an after-market

transaction to obtain the license, which would itself delay service to

the public and may prevent the public from recovering a reasonable

portion of the value of the spectrum resource.

4. Long-Form Application

81. If the winning bidder makes the down payment in a timely

manner, a long-form application filed on FCC Form 401 (as modified), or

such other form as may be adopted for Commercial Mobile Radio Service

use in GEN Docket No. 93-252, will be required to be filed by a date

specified by Public Notice, generally within ten (10) business days

after the close of bidding.\56\ After the Commission receives the

winning bidder's down payment and the long-form application, we will

review the long-form application to determine if it is acceptable for

filing. In addition to the information required in the long-form

application of all winning bidders, each winning bidder on licenses in

frequency blocks C and F will be required to submit evidence of its

eligibility to bid on licenses in these blocks, as well as evidence to

support its claim to any special provisions made available to

designated entities. This information may be included in an exhibit to

FCC Form 401, and must include the gross revenues and total assets of

the applicant and all attributable investors in the applicant, and a

certification that the personal net worth of each individual investor

does not exceed the eligibility limitation. This information will

enable the Commission, and other interested parties, to ensure the

validity of the applicant's certification of eligibility to bid in

blocks C and F (submitted as part of its FCC Form 175) and its

eligibility for any bidding credits, installment payment options, or

other special provision. Upon acceptance for filing of the long-form

application, the Commission will issue a Public Notice announcing this

fact, triggering the filing window for petitions to deny. If the

Commission denies all petitions to deny, and is otherwise satisfied

that the applicant is qualified, the license(s) will be granted to the

auction winner.

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\56\Schedule B to FCC Form 401 will not be required to be

submitted by broadband PCS applicants. However, applicants for

broadband PCS licenses proposing to use any portion of broadband PCS

spectrum to offer service on a private mobile radio service basis

must overcome the presumption that PCS is a commercial mobile radio

service. Regulatory Treatment of Mobile Services, Second Report and

Order in GEN Docket No. 93-252, 9 FCC Rcd 1411, 1460-63, 59 FR

18493, Apr. 19, 1994; 47 CFR Sec. 20.9(a)(11), (b). Applicants (or

licensees) seeking to dedicate a portion of the spectrum for private

mobile radio service will be required to attach as an exhibit to the

Form 401 application a certification that it will offer PCS service

on a private mobile radio basis. The certification must include a

description of the proposed service sufficient to demonstrate that

it is not within the definition of commercial mobile radio service

in Section 20.3 of the Commission's Rules. Id.

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5. Processing and Procedural Rules

82. In the Notice, we proposed to adopt general processing and

procedural rules for broadband PCS based on Part 22 of the Commission's

Rules. One commenter, AIDE, argues that the Commission's reference to

proposed PCS rules is vague and legally insufficient for a Notice of

Proposed Rule Making. Comments of AIDE at 16-17. AIDE also asserts that

the adoption of PCS processing and procedural rules is beyond the scope

of the Notice in this rule making proceeding. Id. We disagree. The

Notice sought comment on specific rule sections contained in Part 22 of

our Rules and asked commenters to indicate what modifications should be

made to those rules to adapt them for PCS services. See Notice at 128.

In addition, the Notice specifically requested comment on the general

procedural, processing and petition to deny procedures that should be

used for auctionable services. The Notice's proposal to adopt

processing rules based on Part 22 of the Commission's Rules, with any

appropriate modifications for PCS services, clearly indicated to

commenters the terms of the proposed rules, as is required by 5 U.S.C.

Sec. 553 and 47 CFR Sec. 1.413(c). Accordingly, we believe that the

Notice's description of the proposed rules was sufficiently specific to

alert interested parties to the substance of our proposal and to

provide an adequate opportunity for comment on those proposals.

Moreover, we conclude that these issues are well within the scope of

the Notice.

83. As we proposed, we adopt for broadband PCS a modified version

of the application processing rules contained in Part 22 of the

Commission's Rules. These rules, which will comprise Subpart I of Part

24 of our Rules, will govern application filing and content

requirements, waiver procedures for return of defective applications,

regulations regarding modification of applications, and general

application processing rules. We also adopt petition to deny procedures

based on Section 22.30 of the Commission's Rules. In addition, as we

proposed in the Notice, we adopt rules similar to Sections 22.927,

22.928 and 22.929 of our existing rules (47 CFR Secs. 22.927, 22.928,

22.929) to prevent the filing of speculative applications and pleadings

(or threats of the same) designed to extract money from sincere

broadband PCS applicants. In this regard, we limit the consideration

that an applicant or petitioner is permitted to receive for agreeing to

withdraw an application or a petition to deny to the legitimate and

prudent expenses of the withdrawing applicant or petitioner.

84. With regard to petitions to deny, we adopt expedited procedures

consistent with the provisions of Section 309(i)(2) of the

Communications Act to resolve substantial and material issues of fact

concerning qualifications.\57\ This provision requires us to entertain

petitions to deny the application of the auction winner if petitions to

deny are otherwise provided for under the Communications Act or our

Rules.

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\57\The adoption of such procedures is necessary because Section

309(j)(5) of the Communications Act forbids the granting of licenses

through competitive bidding unless the Commission determines that

the applicant is qualified.

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85. As we indicated in the Second Report and Order, the Commission

need not conduct a hearing before denying an application if it

determines that an applicant is not qualified and no substantial issue

of fact exists concerning that determination. See Second Report and

Order at 202. In the event that the Commission identifies substantial

and material issues of fact in need of resolution, Section 309(i)(2) of

the Communications Act permits in any hearing the submission of all or

part of evidence in written form and allows employees other than

administrative law judges to preside over the taking of written

evidence. We will incorporate these principles into our broadband PCS

procedural rules.

D. Procedures in Alternative Auction Design

86. If we decide to employ a sequential auction design (using

either oral or electronic bid submission), the same general rules and

procedures described above will be used with certain modifications to

fit the oral or electronic auction format. In the case of oral

auctions, bidders would be required to follow the procedures described

above, including the submission of the standard upfront payment of

$0.02 per MHz-pop prior to the auction. Applicants would submit a

sufficient upfront payment to cover the total number of MHz-pops they

desire to win. Once a bidder has won the maximum number of MHz-pops

covered by its upfront payment, that bidder will be precluded from

further bidding in the auction.\58\ Immediately after bidding closes on

a license, the winning bidder (i.e., the high bidder on a license on

which bidding has closed) will be asked to sign a bid confirmation

form. No other license will be put up for bid until a bid confirmation

form is signed by a high bidder on the previous license.\59\ Because we

recognize that in an oral auction the chances of a bidder accidentally

placing a high bid are greater than in other auction methods, and

because the harm will be limited if the license is immediately re-

offered, we will not impose a penalty on a high bidder who withdraws a

high bid by refusing to sign the bid confirmation form. Thus, in an

sequential oral auction in which a high bidder declines to sign the bid

confirmation form, the license will be immediately put up for bid

again. If, however, a high bidder signs a bid confirmation form but

subsequently fails to submit the 20 percent down payment or otherwise

defaults, the standard default penalties (described supra) will

apply.\60\

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\58\This is similar to the procedure adopted in the Fourth

Report and Order for the oral auctioning of IVDS licenses. See

Fourth Report and Order in PP Docket No. 93-253, 9 FCC Rcd 2330, 59

FR 24947, May 13, 1994.

\59\If we use single combined bidding, described supra, no other

licenses will be put up for bid until a bid confirmation form is

signed for each license put up for bid together in a combined

auction.

\60\See 47 CFR Secs. 1.2104 and 1.2109.

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87. If we decide to use sequential electronic bidding, bidders

would again follow the general procedures described above including the

submission of the standard upfront payment amount of $0.02 per MHz per

pop prior to the auction. Applicants would submit a sufficient upfront

payment to cover the total number of MHz-pops they desire to win. An

applicant will not be eligible to bid on a license for which it has not

applied or which contains more MHz-pops than the total MHz-pops covered

by the bidder's upfront payment less any MHz-pops already won by that

bidder. Once a bidder has won licenses representing the maximum number

of MHz-pops reflected in its upfront payment, that bidder will be

precluded from further bidding in the auction. Each bidder's

eligibility will be computed and tracked by the auction software and

bids placed by ineligible bidders will not be accepted. After the

auctioneer declares bidding on a license closed and the high bidder has

been notified, that bidder will be asked to confirm its high bid. If

the high bidder in a sequential electronic auction declines to confirm

its high bid, the license will be immediately re-auctioned and no

penalty will be imposed. No other licenses will be put up for bid until

a bid confirmation form is signed by a high bidder on the previous

license.\61\ As with sequential oral auctions, if a high bidder signs a

bid confirmation form but subsequently fails to submit the 20 percent

down payment or otherwise defaults, the standard default penalties

(described supra) will apply.

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\61\See also n. 59, supra.

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VI. Regulatory Safeguards

A. Transfer Disclosure Requirements

88. In Section 309(j), Congress directed the Commission to

``require such transfer disclosures and anti-trafficking restrictions

and payment schedules as may be necessary to prevent unjust enrichment

as a result of the methods employed to issue licenses and permits.'' 47

U.S.C. Sec. 309(j)(4)(E). In the Second Report and Order, the

Commission adopted safeguards designed to ensure that the requirements

of Section 309(j)(4)(E) are satisfied. See Second Report and Order at

210-226 and 258-265.

89. In the Second Report and Order (at 214), we stated our belief

that it is important to monitor transfers of licenses awarded by

competitive bidding in order to accumulate the data necessary to

evaluate our auction designs and to judge whether ``licenses [have

been] issued for bids that fall short of the true market value of the

license.'' H.R. Rep. No. 103-111 at 257. Therefore, we imposed a

transfer disclosure requirement on licenses obtained through the

competitive bidding process, whether by a designated entity or not. See

47 CFR Sec. 1.2111(a). We believe that the transfer disclosure

requirements contained in Section 1.2111(a) of the Commission's Rules

should apply to all broadband PCS licenses obtained through the

competitive bidding process. Generally, licensees transferring their

licenses within three years after the initial license grant will be

required to file, together with their transfer applications, the

associated contracts for sale, option agreements, management

agreements, and all other documents disclosing the total consideration

received in return for the transfer of its license. As we indicated in

the Second Report and Order, we will give particular scrutiny to

auction winners who have not yet begun commercial service and who seek

approval for a transfer of control or assignment of their licenses

within three years after the initial license grant, in order to

determine if any unforeseen problems relating to unjust enrichment have

arisen outside the designated entity context. See Second Report and

Order at 214.\62\

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\62\We note that these transfer disclosure provisions are in

addition to the limitations on transfers that we have adopted in the

Broadband PCS Reconsideration Order (with respect to spectrum

disaggregation) or elsewhere in this Order (with respect to

transfers of licenses in the entrepreneurs' block).

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B. Performance Requirements

90. The Budget Act requires the Commission to ``include performance

requirements, such as appropriate deadlines and penalties for

performance failures, to ensure prompt delivery of service to rural

areas, to prevent stockpiling or warehousing of spectrum by licensees

or permittees, and to promote investment in and rapid deployment of new

technologies and services.''\63\ In the Second Report and Order we

decided that it was unnecessary and undesirable to impose additional

performance requirements, beyond those already provided in the service

rules, for all auctionable services. The broadband PCS service rules

already contain specific performance requirements, such as the

requirement to construct within a specified period of time. See, e.g.,

47 CFR Sec. 24.203. Failure to satisfy these construction requirements

will result in forfeiture of the license. Accordingly, we do not see

the need to adopt any additional performance requirements in this

Report and Order.

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\63\See Section 309(j)(4)(B) of the Communications Act, as

amended.

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C. Rules Prohibiting Collusion

91. In the Second Report and Order, we adopted a special rule

prohibiting collusive conduct in the context of competitive bidding.

See 47 CFR Sec. 1.2105(c). We referred to the Notice, wherein we

indicated our belief that such a rule would serve the objectives of the

Budget Act by preventing parties, especially the largest firms, from

agreeing in advance to bidding strategies that divide the market

according to their strategic interests and disadvantage other bidders.

See Second Report and Order at 221. We believe that this rule is

nowhere more necessary than with respect to broadband PCS auctions,

where we expect bidder interest to be high and the incentives to

collude to be great. Thus, Section 1.2105(c) will apply to broadband

PCS auctions. This rule provides that from the time the short-form

applications are filed until the winning bidder has made its required

down payment, all bidders will be prohibited from cooperating,

collaborating, discussing or disclosing in any manner the substance of

their bids or bidding strategies with other bidders, unless such

bidders are members of a bidding consortium or other joint bidding

arrangement identified on the bidder's short-form application. In

addition, as discussed in Section IV, supra, bidders will be required

by Section 1.2105(a)(2) of the Commission's Rules to identify on their

Form 175 applications all parties with whom they have entered into any

consortium arrangements, joint ventures, partnerships or other

agreements or understandings which relate to the competitive bidding

process. Bidders will also be required to certify that they have not

entered and will not enter into any explicit or implicit agreements,

arrangements or understandings with any parties, other than those

identified, regarding the amount of their bid, bidding strategies or

the particular properties on which they will or will not bid.

92. Winning bidders in broadband PCS auctions will also be subject

to Section 1.2107 of the Commission's Rules, which among other things

requires each winning bidder to attach as an exhibit to the Form 401

long-form application a detailed explanation of the terms and

conditions and parties involved in any bidding consortium, joint

venture, partnership, or other agreement or arrangement they had

entered into relating to the competitive bidding process prior to the

close of bidding. All such arrangements must have been entered into

prior to the filing of short-form applications. In addition, where

specific instances of collusion in the competitive bidding process are

alleged during the petition to deny process, the Commission may conduct

an investigation or refer such complaints to the United States

Department of Justice for investigation. Bidders who are found to have

violated the antitrust laws or the Commission's rules in connection

with participation in the auction process may be subject to forfeiture

of their down payment or their full bid amount and revocation of their

license(s), and they may be prohibited from participating in future

auctions.

VII. Treatment of Designated Entities

A. Overview and Objectives

93. Congress mandated that the Commission ``ensure that small

businesses, rural telephone companies, and businesses owned by members

of minority groups and women are given the opportunity to participate

in the provision of spectrum-based services.'' 47 U.S.C.

Sec. 309(j)(4)(D). To achieve this goal, the statute requires the

Commission to ``consider the use of tax certificates, bidding

preferences, and other procedures.'' Thus, while providing that we

charge for licenses, Congress has ordered that the Commission design

its auction procedures to ensure that designated entities have

opportunities to obtain licenses and provide service. For that purpose,

the law does not mandate the use of any particular procedure, but it

specifically approves the use of ``tax certificates, bidding

preferences, and other procedures.'' The use of any such procedure is,

in our view, mandated where necessary to achieve Congress's objective

of ensuring that designated entities have the opportunity to

participate in broadband PCS.

94. In addition to this mandate, the statute sets forth various

congressional objectives. For example, it provides that in establishing

eligibility criteria and bidding methodologies the Commission shall

``promot[e] economic opportunity and competition and ensur[e] that new

and innovative technologies are readily accessible to the American

people by avoiding excessive concentration of licenses and by

disseminating licenses among a wide variety of applicants, including

small businesses, rural telephone companies, and businesses owned by

members of minority groups and women.'' 47 U.S.C. Sec. 309(j)(3)(B);

see also id. Sec. 309(j)(4)(C) (requiring the Commission when

prescribing area designations and bandwidth assignments, to promote

``economic opportunity for a wide variety of applicants, including

small businesses, rural telephone companies, and businesses owned by

members of minority groups and women).\64\ Further, Section

309(j)(4)(A) provides that to promote the statute's objectives the

Commission shall ``consider alternative payment schedules and methods

of calculation, including lump sums or guaranteed installment payments,

with or without royalty payments, or other schedules or methods * * *

and combinations of such schedules and methods.''

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\64\As noted in the Second Report and Order, the statute also

requires the Commission to promote the purposes specified in Section

1 of the Communications Act, which include, among other things, ``to

make available, so far as possible, to all the people of the United

States a rapid, efficient, Nation-wide, and world-wide wire and

radio communication service with adequate facilities at reasonable

charges.'' 47 U.S.C. Sec. 151; Second Report and Order at n. 3.

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95. To satisfy these statutory mandates and objectives, we

established in the Second Report and Order eligibility criteria and

general rules that would govern the special measures for small

businesses, rural telephone companies, and businesses owned by members

of minority groups and women. We also identified several measures,

including installment payments, spectrum set-asides, bidding credits

and tax certificates, that we could choose from in establishing rules

for auctionable spectrum-based services. We stated that we would decide

whether and how to use these special provisions, or others, when we

developed specific competitive bidding rules for particular services.

In addition, we set forth rules designed to prevent unjust enrichment

by designated entities who transfer ownership in licenses obtained

through the use of these special measures or who otherwise lose their

designated entity status.

96. We intend in the new broadband personal communications service

to meet fully the statutory mandate of Section 309(j)(4)(D), as well as

the objectives of promoting economic opportunity and competition, of

avoiding excessive concentration of licenses, and of ensuring access to

new and innovative technologies by disseminating licenses among a wide

variety of applicants, including small businesses, rural telephone

companies, and businesses owned by members of minority groups and

women. As explained more fully in this Order, in some respects it is

necessary to do more to ensure that businesses owned by members of

minority groups and women have a meaningful opportunity to participate

in the provision of personal communications services than is necessary

to ensure participation by other designated entities. In particular, we

have concluded that steps such as adoption of bidding credits, tax

certificates, alternate payment plans and relaxed attribution rules,

must be taken to encourage investment in minority and women-owned

businesses. These special provisions are tailored to address the major

problem facing minorities and women desiring to offer PCS--lack of

access to capital. Moreover, because broadband PCS licenses in many

cases are expected to be auctioned for large sums of money in the

competitive bidding process, and because buildout costs are likely to

be high, it is necessary to do more to ensure that designated entities

have the opportunity to participate in broadband PCS than is necessary

in other, less costly spectrum-based services. In our view, these steps

and the others we adopt are required to fulfill Congress' mandate that

designated entities have the opportunity to participate in the

provision of PCS. The measures we adopt today will also increase the

likelihood that designated entities who win licenses in the auctions

become strong competitors in the provision of broadband PCS service.

97. In instructing the Commission to ensure the opportunity for

designated entities to participate in auctions and spectrum-based

services, Congress was well aware of the difficulties these groups

encounter in accessing capital. Indeed, less than two years ago,

Congress made specific findings in the Small Business Credit and

Business Opportunity Enhancement Act of 1992, that ``small business

concerns, which represent higher degrees of risk in financial markets

than do large businesses, are experiencing increased difficulties in

obtaining credit.''\65\ Because of these problems, Congress resolved to

consider carefully legislation and regulations ``to ensure that small

business concerns are not negatively impacted'' and to give priority to

passage of ``legislation and regulations that enhance the viability of

small business concerns.''\66\

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\65\Small Business Credit and Business Opportunity Enhancement

Act of 1992, Section 331(a)(3), Pub. Law 102-366, Sept. 4, 1992.

\66\Id., Section 331(b) (2), (3).

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98. Congress also recognized that these funding problems are even

more severe for minority and women-owned businesses, who face

discrimination in the private lending market. For example, Congress

explicitly found that businesses owned by minorities and women have

particular difficulties in obtaining capital and that problems

encountered by minorities in this regard are ``extraordinary.''\67\ A

number of studies also amply support the existence of widespread

discrimination against minorities in lending practices. In October

1992, the year prior to passage of the auction law, the Federal Reserve

Bank of Boston released an important and highly-publicized study

demonstrating that a black or Hispanic applicant in the Boston area is

roughly 60 percent more likely to be denied a mortgage loan than a

similarly situated white applicant.\68\ The researchers measured every

variable mentioned as important in numerous conversations with lenders,

underwriters, and examiners and found that minority applicants are more

likely to be denied mortgages even where they have the same obligation

ratios, credit history, loan to value and property characteristics as

white applicants. The lending discrimination that occurs, the study

found, does not involve the application of specific rules, but instead

occurs where discretionary decisions are made. Based on the Boston

study, it is reasonable to expect that race would affect business loans

that are based on more subjective criteria to an even greater extent

than the mortgage loan process, which uses more standard rules.

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\67\Id., Sections 112(4), 331(a)(4).

\68\Mortgage Lending in Boston: Interpreting HMDA Data, Federal

Reserve Bank of Boston, Working Paper 92-7 (October 1992).

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99. Importantly, the Boston study also found that, because most

loan applicants have some negative attributes, most loan denials will

appear legitimate by some objective standard. Accordingly, the study

stated, the lending discrimination that occurs is very difficult to

document at the institution level, so legal remedies may be largely

ineffective. Indeed, Congress had already attempted to address

discriminatory lending practices through laws that bar discrimination

in lending, such as the Equal Credit Opportunity Act, enacted in 1974

and amended many times since then. Congress, therefore, could

reasonably assume, based on the Boston study, and its legislative

experience regarding discriminatory lending practices, that minority

applicants for licenses issued in spectrum auctions would face

substantial (albeit subtle) barriers to obtaining financing. Any legal

remedies, even if effective, would, moreover, come too late to ensure

that minorities are able to participate in spectrum auctions and obtain

licenses.

100. Similar evidence presented in testimony before the House

Minority Enterprise Subcommittee on May 20, 1994 indicates that African

American business borrowers have difficulty raising capital mainly

because they have less equity to invest, they receive fewer loan

dollars per dollar of equity investment, and they are less likely to

have alternate loan sources, such as affluent family or friends.

Assuming two hypothetical college educated, similarly-situated male

entrepreneurs, one black, one white, the testimony indicated that the

white candidate would have access to $1.85 in bank loans for each

dollar of owner equity invested, while the black candidate would have

access to only $1.16. According to the testimony, the problems

associated with lower incomes and intergenerational wealth, as well as

the discriminatory treatment minorities receive from financial

institutions, make it much more likely that minorities will be shut out

of capital intensive industries, such as telecommunications. This

testimony also noted that African American representation in

communications is so low that it was not possible to generate

meaningful summary statistics on underrepresentation.\69\

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\69\Testimony of Dr. Timothy Bates, Visiting Fellow, The Woodrow

Wilson Center, before the U.S. House of Representatives Committee on

Small Business, Subcommittee on Minority Enterprise, Finance, and

Urban Development (House Minority Enterprise Subcommittee), May 20,

1994.

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101. The inability to access capital is also a major impediment to

the successful participation of women in broadband PCS auctions. In

enacting the Women's Business Ownership Act in 1988, Congress made

findings that women, as a group, are subject to discrimination that

adversely affects their ability to raise or secure capital.\70\ As AWRT

documents, these discriminatory barriers still exist today. Indeed,

AWRT reports that while venture capital is an important source of

funding for telecommunications companies, women-owned companies

received only approximately one percent of the $3 billion invested by

institutional venture capitalists in 1993. Citing a 1992 National

Women's Business Council report, AWRT further argues that even

successful women-owned companies did not overcome these financing

obstacles after they had reached a level of funding and profitability

adequate for most other businesses.\71\

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\70\Pub. L. 100-533 (1988). In 1991, Congress enacted the

Women's Business Development Act of 1991 to further assist the

development of small businesses owned by women. See Pub. L. 102-191

(1991).

\71\See Letter of AWRT to the Honorable Kweisi Mfume, Chairman,

House Minority Enterprise Subcommittee, June 1, 1994.

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102. A study prepared in 1993 by the National Foundation for Women

Business Owners (NFWBO) further illustrates the barriers faced by

women-owned businesses. For example, it finds that women-owned firms

are 22 percent more likely to report problems dealing with their banks

than are businesses at large. In addition, the NFWBO study finds that

the largest single type of short-term financing used by women business

owners is credit cards and that over half of women-owned firms use

credit cards for such purposes, as compared to 18 percent of all small

to medium-sized businesses, which generally use bank loans and vendor

credit for short-term credit needs. With regard to long-term financing,

the study states that a greater proportion of women-owned firms are

turning, or are forced to turn, to private sources, and to a wider

variety of sources, to fulfill their needs. Based on these findings,

the NFWBO study concludes that removal of financial barriers would

encourage stronger growth among women-owned businesses, resulting in

much greater growth throughout the economy.\72\

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\72\See The National Foundation for Women Business Owners,

Financing the Business, A Report on Financial Issues from the 1992

Biennial Membership Survey of Women Business Owners, October 1993.

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103. If we are to meet the congressional goals of promoting

economic opportunity and competition by disseminating licenses among a

wide variety of providers, we must find ways to counteract these

barriers to entry. Over the years, both Congress and the Commission

have tried various methods to enhance access to the broadcast and cable

industries by minorities and women. For example, in the late 1960s, the

FCC began to promote nondiscriminatory employment policies by broadcast

licensees. These equal employment opportunity efforts have taken the

form of Commission rules and policies that require licensees not to

discriminate, to report hiring and promotion statistics, and to

implement affirmative action programs.\73\ The Commission also has

adopted similar equal employment rules for licensees in the common

carrier, public mobile, and international fixed public radio

communication services,\74\ as well for cable operators.\75\ The cable

EEO rules were recently revised as part of the implementation of the

Cable Act of 1992, and they now apply to cable entities, satellite

master antenna television operators serving 50 or more subscribers and

any multichannel video programming distributor.\76\

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\73\47 CFR Sec. 73.2080 (broadcasters must ``establish,

maintain, and carry out a positive continuing program of specific

practices designed to ensure equal opportunity in every aspect of

the station's employment policy and practice'').

\74\47 CFR Secs. 21.307, 22.307, 23.55.

\75\47 CFR Secs. 76.71-76.79.

\76\See 47 U.S.C. Sec. 554. In addition, the Commission has

proposed adopting EEO requirements for all CMRS licensees, including

PCS licensees. Regulatory Treatment of Mobile Services, Further

Notice of Proposed Rule Making, GN Docket 93-252, FCC 94-100, 59 FR

28042, May 31, 1994.

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104. A decade after it first addressed discriminatory hiring

practices, the Commission began to look into the serious

underrepresentation of minorities among owners of broadcast stations.

Recognizing that it could play an important role in alleviating this

problem through the licensing process, the Commission adopted its tax

certificate and distress sale policies in 1978 to encourage minority

ownership of broadcast facilities.\77\ It noted that full minority

participation in the ownership and management of broadcast facilities

would result in a more diverse selection of programming and would

inevitably enhance the diversity of control of a valuable resource, the

electromagnetic spectrum.\78\

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\77\See Commission Policy Regarding the Advancement of Minority

Ownership in Broadcasting, 92 FCC 2d 849 (1982) (1982 Policy

Statement); see also Statement of Policy on Minority Ownership of

Broadcasting Facilities, 68 FCC 2d 979 (1978) (1978 Policy

Statement).

\78\Because of the role of cable television systems in

retransmitting broadcast signals, the Commission has also issued tax

certificates in connection with sales of cable systems. See

Statement of Policy on Minority Ownership of CATV Systems, FCC 82-

524, released December 22, 1982.

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105. In implementing these ownership policies, the Commission

identified lack of access to capital as one of the principal barriers

to minority entry. Thus, in 1981, the Commission created the Advisory

Committee on Alternative Financing for Minority Opportunities in

Telecommunications (the ``Rivera Committee'') to investigate financing

methods and to give recommendations to the FCC on ways to encourage

minority ownership of telecommunications facilities.\79\ The Rivera

Committee confirmed that the shortage of capital is a principal problem

facing minorities seeking ownership opportunities and further found

that this shortage was due to minority inexperience in obtaining

financial institution misconceptions about potential minority

borrowers, and marketplace structural problems, such as high interest

rates and low broadcast industry earnings growth. Among other things,

the Rivera Committee suggested educational and outreach programs and

expanding the tax certificate program to nonbroadcast properties such

as common carrier and land mobile. In response to this recommendation,

the FCC submitted draft legislation to Congress proposing to broaden

the scope of the Commission's authority to issue tax certificates in

connection with the sale or exchange of any type of telecommunications

facilities.\80\ On March 24, 1983, The Minority Telecommunications

Ownership Tax Act of 1983, H.R. 2331, which incorporated the

Commission's proposals, was introduced in the House of

Representatives.\81\

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\79\Strategies for Advancing Minority Ownership Opportunities in

Telecommunications, The Final Report of the Advisory Committee on

Alternative Financing for Minority Opportunities in

Telecommunications to the Federal Communications Commission, May

1982 (Rivera Committee Report).

\80\See Federal Communications Draft Legislation Revising

Section 1071 of the Internal Revenue Code of 1994 (January 17,

1983).

\81\The Minority Telecommunications Ownership Tax Act of 1983,

H.R. 2331, 98th Congress, 1st Sess., March 24, 1983.

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106. Congress also took steps to address the problem of minority

underrepresentation in communications. In 1982, it mandated the grant

of a ``significant preference'' to minority applicants participating in

lotteries for spectrum-based services. 47 U.S.C. Sec. 309(i)(3)(A).

And, in 1988 and each fiscal year thereafter, Congress attached a

provision to the FCC appropriations legislation, which precluded the

Commission from spending any appropriated funds to examine or change

its minority broadcast preference policies.\82\

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\82\See Continuing Appropriations Act for Fiscal Year 1988, Pub.

L. 100-102, 101 Stat. 1329-31; Departments of Commerce, Justice, and

State, the Judiciary, and Related Agencies Appropriations Act of

1994, Pub. L. 103-121, 107 Stat. 1167.

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107. These efforts have met with limited success. The record shows

that women and minorities have not gained substantial ownership

representation in either the broadcast or non-broadcast

telecommunications industries. For example, a 1993 report conducted by

the National Telecommunications and Information Administration's (NTIA)

Minority Telecommunications Development Program shows that, as of

August 1993, only 2.7 percent of commercial broadcast stations were

owned by minorities. Another study commissioned by the Commerce

Department's Minority Business Development Agency in 1991 found that

only one half of one percent of the telecommunications firms in the

country were minority owned. The study also identified only 15 minority

cable operators and 11 minority firms engaged in the delivery of

cellular, specialized mobile radio, radio paging or messaging services

in the United States.\83\ And, according to the last available U.S.

Census, only 24 percent of the communications firms in the country were

owned by women, and these women-owned firms generated only

approximately 8.7 percent of the revenues earned by communications

companies.\84\ When companies without paid employees are removed from

the equation, firms with women owners represent only 14.5 percent of

the communications companies in the country.\85\ One result of these

low numbers is that there are very few minority or women-owned

businesses that bring experience or infrastructure to PCS. They thus

face an additional barrier relative to many existing service providers.

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\83\See Testimony of Larry Irving, Assistant Secretary for

Communications and Information, U.S. Department of Commerce, before

the House Minority Enterprise Subcommittee, May 20, 1994. In his

testimony at this same hearing, FCC Chairman Reed Hundt cited some

of these statistics and noted that in light of this serious

underrepresentation, there remains ``a fundamental obligation for

both Congress and the FCC to examine new and creative ways to ensure

minority opportunity.'' Testimony of Reed E. Hundt, Chairman,

Federal Communications Commission, before the House Minority

Enterprise Subcommittee, May 20, 1994.

\84\See Women-Owned Businesses, 1987 Economic Censuses, U.S.

Department of Commerce, issued August 1990, at 7, 147. The census

data includes partnerships, and subchapter S corporations. We have

no statistics regarding women representation among owners of larger

communications companies.

\85\Id.

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108. Small businesses also have not become major participants in

the telecommunications industry. For instance, one commenter asserts

that ten large companies--six Regional Bell Operating Companies

(RBOCs), AirTouch (formerly owned by Pacific Telesis), McCaw, GTE and

Sprint--control nearly 86 percent of the cellular industry. This

commenter further contends that nine of these ten companies control 95

percent of the cellular licenses and population in the 50 BTAs that

have one million or more people.\86\

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\86\Ex parte filing of DCR Communications, May 31, 1994.

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109. Congress directed the Commission to ensure that, together with

other designated entities, rural telephone companies have the

opportunity to participate in the provision of PCS. Rural areas,

because of their more dispersed populations, tend to be less profitable

to serve than more densely populated urban areas. Therefore, service to

these areas may not be a priority for many PCS licensees. Rural

telephone companies, however, are well positioned because of their

existing infrastructure to serve these areas profitably. We, therefore,

have adopted special provisions to encourage their participation,

increasing the likelihood of rapid introduction of service to rural

areas.

110. In the new auction law, Congress directed the Commission to

remedy this serious imbalance in the participation by certain groups,

especially minorities and women. The record indicates that, in the

absence of meaningful efforts to assist designated entities, there

would be good reason to think that participation by these groups,

particularly businesses owned by women and minorities, would continue

to be severely limited. Indeed, the auction law itself envisions a

process that requires payment of funds to acquire an initial license,

unlike existing licensing methods such as comparative hearings or

lotteries. It is therefore possible that participation by those with

limited access to capital could be further diminished by operation of

the statute, absent affirmative provisions to create competitive

opportunity for designated entities. The measures we adopt in this

Fifth Report and Order thus will carry out Congress's directive to

provide meaningful opportunities for small entities, rural telephone

companies, and businesses owned by women and minorities to provide

broadband PCS services. The rules also are expressly designed to

address the funding problems that face these groups and that are their

principal barriers to entry.

111. We also intend that designated entities who win licenses have

the opportunity to become strong competitors in this service. While the

new broadband PCS service presents tremendous opportunities for

designated entities to participate in the provision of the next

generation of innovative wireless mobile telecommunications services,

it is expected to be a highly competitive service, and the estimated

costs of acquiring a license and constructing facilities are

substantial. In the Broadband PCS Reconsideration Order, which was

adopted June 9, 1994, we took specific steps to assist designated

entities to become viable competitors in the provision of broadband

PCS. For example, we modified the PCS spectrum allocation plan by

shifting all channels blocks to a contiguous lower segment of the

``emerging technologies band'' in part to bolster the ability of

designated entities to obtain more competitively viable licenses. In

addition, we relaxed some of the ownership and attribution rules with

respect to cellular operators' participation in PCS to foster

investment in designated entity ventures,\87\ and we also relaxed the

PCS/cellular cross-ownership rule for designated entities with cellular

holdings to allow them to further expand their opportunities in

broadband PCS.\88\ Further, we took steps that will result in lower

capital costs for designated entities that obtain PCS licenses,

including adoption of a band plan that will reduce the costs of

clearing the PCS spectrum of incumbent microwave users as well as

relaxing the construction requirements.

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\87\Broadband PCS Reconsideration Order at 127.

\88\Id. at 125.

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112. The measures we establish today to encourage the entry of

designated entities also are designed to promote strong, long-term bona

fide competitors. For example, we have revised the definition of a

small business set forth in the Second Report and Order to include

entities with up to $40 million in gross revenues, and we will allow

these small businesses to pool their resources and form consortia to

bid in the entrepreneurs' blocks. We also adopt rules that allow

entrepreneurial businesses, small businesses, and businesses owned by

women and minorities to raise capital by attracting passive equity

investors. At the same time, we have designed these rules to ensure

that the special provisions adopted for such businesses accrue to the

intended beneficiaries.

B. Summary of Special Provisions for Designated Entities

113. As discussed more fully below, many commenters in this

proceeding believe that the inability of designated entities to obtain

adequate funding has a profoundly adverse effect on the potential for

these businesses to bid successfully in auctions against very large,

established businesses. Therefore, we take a number of steps in this

Order to help address this imbalance.

We establish two ``entrepreneurs' blocks'' (frequency

blocks C and F) in which large companies (those with $125 mil

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