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IN THE

TINITED STATES COURT OF APPEALS


FOR THE NINTH CIRCUIT
Case No.

SKYBRIDGE SPECTRUM FOLTNDATION, a Delaware Nonprofit


C orp orati on, INTELLIGENT TRAN S PORTAIION & M ONITORING
V/IRELESS LLC, a Delaware Limited Liabilify Company, Y2G LLC, a
Delaware Limited Liability Company, and WARREN HAVENS, an
individual.

Petitioners,
v.

I-INITED STAIES OF AMERICA, and the FEDERAL


C OMMTINICATIONS C OMMIS SION

Respondents.

EMERGENICY MOTION LINDER CIRCUIT RULE 27-3 FOR STAY OF


AGENCYACTION LINDER FRAP 18, OR, IN THE ALTERNAIIVE,
PETITION FOR WRIT OF MANDAMUS

NOSSAMAN LLP
PATRTCK J. RTCHARD (SBN 131046)
(Counsel of Record)
prichard@nos saman. com
TAMIR D. DAMARI
50 Califomia Street, 34th Floor
San Francisco, California 94ll I -47 07
Telephone: (415) 398-3600
Facsimile: (a15) 398-2438

Attorneys for Petitioners


CIRCUIT RULE 27-3 CERTIFICATE

1. Telephone numbers, e-mail addresses and office addresses of the


attorneys for the parties:

Petitioners:

Patrick J. Richard (SBN 131046)


(Counsel of Record)
p i chard@. nossaman. com
r:

Tamir Damari
tdamari f@n o ss aman. c om
Nossaman LLP
5 0 California Street, 3 4th Floor

San Francisco, California 941 I I -47 07


Telephone: (415) 398-3600
Facsimile: (415) 398-2438

Respondent/Agency:

Austin Schlick, General Counsel


A u stin. S chli ckld,fbc. go v
(202) 418-r7s2
Daniel Armstrong, Associate General Counsel
ani e1. Armstron g@,fcc. eo v
(202) 4r8-t749
Federal Communications Commission
445 l2rh Sffeet S.W.
Washington, DC 20554

Respondent:

United States Department of Justice


Civil Division, Appellate Staff
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) sr4-40s2
2. Facts giving rise to the claimed emergency:

Petitioners seek an emergency stay of a Federal Communications

Commission ("FCC") public auction, "Auction of Lower and Upper Paging Bands

Licenses," AIJ Docket No. 09-205 ("Auction 87").r Auction 87 is scheduled to

commence on June 15, 2010. Petitioners also request that this Court review the

validity of a final written determination issued by the FCC on May 27,2010 (the

"Determination" or "DA 10-863"). In the Determination, the FCC: (i) informed

auction applicants of a baseless rule interpretation (in effect a rule change)

applicable throughout the auction (the "Rule Change") and (ii) applied the Rule

Change to designate two entify applicants in Public Auction 87 as "qualified

bidders," who would otherwise have been disqualified under the actual rule (the

"Two-Bidder Decision")

This Determination was the latest in a series of unauthonzed FCC decisions

permitting arry entity applicant, at any point in the bidding process (including after

the relevant application deadline), to disclaim bidding credits (amounting to up to

35o/o of the bid price) that it had previously falsely certified it was qualified to

obtain. As established below, this practice and Determination are plainly in

derogation of the Code of Federal Regulations and are unfair to lawful bidders.

They also destroy auction integrity.

'Public Auction 87 is under FCC Docket No. 09-205.


ii
The Determination was published within FCC "Public Notice DA

l0-863," attached hereto as Exhibi 1. As demonstratedinfra, this

Determination violates the unambiguous language of the FCC's own regulations

regarding amendments to so-called "short form" license applications (Form 175

applications). (See 47 C.F.R $1.2105(bX2)). Since the very integrity of the

auction process is undermined by the unlawful Determination, staying Public

Auction 87 pending the FCC's compliance with its own regulations is necessary

and appropriate relief. See Cincinnati Bell Telephone Co. v. FCC, 1995 U.S.

App.LEXIS 32938 (6'n Cir. October 8, 1995), Petitionersfurtherrequestan

order providing for a briefing schedule in this case.

In the alternative, Petitioners seek a writ of mandamus under FRAP 21

directing the FCC to: (i) apply $1.2105(bX2) (discussed infra) to all applicants in

Auction 87 in accordance its express terms, (ii) vacate Public Notice DA 10-863 to

the extent it failed to apply $ 1.2105(b)(2) under this rule's express terms, and (iii)

stay Auction 87 until further order of this Court.

Venue is proper in this Court under 28 U.S.C . 2343,as Petitioners maintain

their principal places of business in the state of California.

The FCC waited until the last of the regular Public Notices in Auction 87 to

issue the Determination on May 27,2070. The next day, Petitioners presented a

request for reconsideration of the Determination (Exhibit 2) asking for a response

iii
within four business days. The FCC has yet to respond. This Motion is presented

on the third business day thereafter. Petitioners have acted as promptly as

possible.

3. Notification and Service of the Motion Upon Interested Parties

The Motion is being served upon interested parties as follows:

Via Hand Delivery and Federal Express (Overnight Delivery)

Austin Schlick, General Counsel


Daniel M. Armstrong, Associate General Counsel
Office of General Counsel
Federal Communications Commission
445 lzth Street S.'W.
Washington, DC 20554

Messrs. Schlick and Armstrong were notified of the Motion via e-mail on

June 8,2010.

United States Department of Justice


Civil Division, Appellate Staff
950 Pennsylvania Avenue Nr
Washington, DC 20530

Via Federal Express (Overnight Delivery)

Marlene Dortch, Secretary


Office of the Secretary
Federal Communications Commission
9300 East Hampton Drive
capital Heights, }|4d. 207 43

Lester L. Boihem
Two Way Communications, Inc.
1704 Justin Road
Metairie, LA 70001

Frank W Ruth
Two Way Communications, Inc.
2819 East Simcoe Street
Lafayette, LA 70501

James D. Silke
Silke Communications, Inc.
680 Tyler Street
Eugene, Oregon 97402

Robert Schwaninger, Esq.


6715 Little River Turnpike, Suite 204
Annandale, Va. 22003
Attorney for Silke Communications, Inc.
II{TRODUCTION[

The FCC grants licenses and construction permits for radio stations

(including broadcast and other stations). Minnesota Christian Broadcasters, Inc.

v. FCC,411 F.3d 283 (D.C. Cir. 2005). When the Commission receives license or

permit applications that are mutually exclusive (such as applications for the same

frequency in the same arca), the Federal Communications Act requires it to choose

among them by using a competitive bidding process. See 47 U.S.C. $309CXl).

This bidding process involves three steps: (1) identifying "qualified bidders"

among license applicants on the basis of certified statements in "short form

applications" (also known as FCC Form 175); (2) permitting qualified bidders to

participate in a public auction for the spectrum licenses at issue, and (3) awarding

licenses to high bidders after the auction upon the acceptance of their "long form

applications." (the information in which is considered along with the information

in the short form application).

Submitters of short-form applications must make certain certifications in

their applications, including a certification that if the applicant claims Designated

Entity status pursuant to $I .2II0 (described below) it declares, under penalry of

perjury that it is qualified as a Designated Entity. 47 CFR $ 1.2105(aXi").

"Designated Entities" obtain a bidding credit based on their "size" (there are

several size levels) as determined by their average annual attributable gross


revenues. As discussed more fully below, this functions primarily as an actual

bidding credit used in the auction competition process, and only secondarily as a

payment credit after the auction process is concluded.

Furthermore,4'7 CFR $1.2105(b)(2) bars "Major amendments [to short form

applications that] include...changes in an applicant's size which would affect

eligibility for designated entity provisions. ...4n application will be considered to

be newly filed if it is amended by a major amendment and may not be resubmitted

after applicable filing deadlines." In the instant Determination, the FCC

intentionally disregarded these regulations in determining the "qualified bidder"

status of two of the applicants in Auction 87, Silke Communications ("Silke") and

Two-'Way Communications ("Two-Way"). Further, in the Determination, the FCC,

applyrng the same misguided logic, informed all bidders that they may bid for and

be awarded licenses nowithstanding their violation of $$ 1 .2105(a)(iv) and

1.2105(b)(2). For the reasons discussed below, this Court should intervene to

protect the integrity of the competitive bidding process and the rights of the

bidders who comply with the FCC auction rules.

Petitioners are private, FCC-licensee businesses based in Berkeley

California. They obtain and develop wireless cormunications services for

govemment entities, critical infrastrucfure companies, and others.


RELEVANT FACTS AND PROCEDURAL HISTORY

Auction 87 involves the auction of 9,603 licenses for lower and upper

paging bands spectrum. (See Exhibit l, atpage 1.) Bidding inAuction 87 is

scheduled to begin on June 15, 2010. (Id.) The FCC has determined that

Petitioners are Qualified Bidders in Auction 87. (1d., atAttachment A.) The FCC

has likewise determined that Silke and Two-Way are Qualified Bidders.

The fundamentally unlawful aspect of the Determination is the Rule

Change. The Two-Bidder Decision (involving Silke and Two-Way) is merely a

logical outgrowth of the Rule Change. To demonstrate how the Rule Change

functions in practice, the details of the Two-Bidder Decision are first discussed

below. Simply put, although the FCC found Silke and Two-Way to be "Qualif,red

Bidders," Silke and Two-Way violated FCC rule $ l.2llsregarding application

certifications and amendments, which disqualified them under that rule.

As noted, FCC rules authonze the FCC to award wireless auction bidding

credits for "Designated Entity" small businesses and new enffants. (,See 47 CFR

$$ 1.2110 and 27 .906.) These bidding credits provide the Designated Entities with

credits in amounts ranging from 15 to 35 percent. Id. They permit small business

Designated Entities to in effect "outbid" larger entities (since the amount of the

credit is added to the entity's actual dollar bid in order to determine its bid used in
each round of the auction competition).2

Given the obvious unfair competitive advantage that would result if parties

are permtted to abuse the bidding credit system, FCC Form 175 requires that

applicants "certifu...that if a bidding credit eligibility is claimed in block 10, the

applicant is eligible for any special provisions." (See FCC Form 175, attached

hereto as Exhibit j, atCertification 6. See also,47 CFR $1.2105(a)(iu).) Although

the FCC also requires certain financial information to support this certification, the

underlying purpose of the certification is to permit FCC reliance upon claimed

bidding credit eligibility status. The FCC does not audit that financial information.

The application deadline for Public Auction 87 was March 16,2010. (See

Exhibit 4). Silke and Two-Way originally sought the bidding credit for small
business entities, specificalty certifliing in their short-form applications that they

were entitled to this credit. Thereafter, after the application deadline for Auction

87 had expired, Silke and Two-Way changed course, stating that they were not

entitled to the bidding credits they originally sought and certified and seeking to

amend their applications accordingly. (See Exhibit 5.)

In its Public Notice dated }/ray 27,2010, the FCC permitted these

amendments (the Two-Bidder Decision), identified qualified bidders in Auction 87

,For example, a company with no bidding credit that had a $ 1,000 maximum bid
could be outbid by a Designated Entify with a 3s%bidding credit that bid, in
actual dollars, any amount over $650.
4
(which include Petitioners, Silke and Two-Way), and confirmed the start of

Auction 87 for June 15,2010. This Public Notice, DA 10-863 (the "Public

Notice"), states, in pertinent part (at footno te 2):

Two applicants - Silke Communications and Two-Way


Communications - qualified as bidders in Auction 87, but are not
eligible for the bidding credit originally requested in their respective
short-form applications. Specifically, Silke Communications
amended its application and requested the 25 percent bidding credit
instead of the 35 percent bidding credit. Two-Way Communications
originally requested the 25 percent bidding credit, but amended its
application to withdraw its request for a bidding credit altogether.
Therefore, these applicants are qualified, but only with the bidding
credit level as shown in Attachment A.

The FCC attempted to justifli the Two-Bidder Decision on the basis of

a long-standing staff-concocted practice restated in the Public Notice:

43....Bidders must immediately report any change affecting their


eligibility for a bidding credit. Bidders should clearly state the nature
of the change in an amendment to their short-form application and in
the summaryletter referenced above. In cases of diminished bidding
credit eligibiliqv. the Commission will make appropriate adjustments
in the bidding credit prior to the computation of any down and final
pa)ment amounts due [after end of the auctionl.

,See Public Notice DA l0-863, at pg. 9 (emphasis added). This constitutes the

FCC's "Rule Change." As established below, the FCC, by virrue of its Rule

Change, violated $1 .2105's provisions with respect to required certifications in,

and permissible amendments to, short-form applications.

On May 28,20t0, Petitioners requested by methods prescribed in the Public


Notice3 that the FCC reconsider and correct both components of the

Determination. (See Exhibt 2) Therein, Petitioners asked for a response by the

close of business on June 3, but have yet to receive a response from the FCC on

this request. Given the imminent and irreparable rnjury to Petitioners which would

result ifAuction 87 takes place under the Determination, this appeal and Petition is

presented.

ARGT]MENT

A. This Court Shoutd Issue a Stay of Public Auction 87 Pursuantto 47


USC $a02(a)

1. The Instant Motion is Properly Before this Court

a. Subject Matter Jurisdiction

47 U.S.C. $a02(a) provides for appellate jurisdiction over "Any proceeding

to enjoin, set aside, annul or suspend any order of the Commission under this

Chapter." Jurisdiction under $402(a) is premised upon a"frnal" FCC

determination. See 28 U.S.C . 2342 ("The court of appeals. ..has exclusive

jurisdiction to enjoin, set aside, suspend...or to determine the validity of...all final

orders of the Federal Communications Commission made reviewable by section

a02@) of title 47"). The definition of "finality" is not rigid. The U.S. Court of

Appeals for the District of Columbia Circuit has noted that:

,As shown in Exhibit 2,Petitioners also filed their reconsideration request in the
Auction 87 internet-accessible public docket, so that all Qualified Bidders, and any
other interested parties, would have access to it.
6
The principle of finaliry in adminisfrative law is...governed...by a
realistic assessment of the nature and effect of the order sought to be
reviewed. Hence, a final order need not necessarily be the very last
order in an agency proceeding, but, rather, is final for purposes of
judicial review when it imposefs] an obligation, den[ies] a right, or
fixfes] some legal relationship as a consummation of the
admini strative process.

Fidelity Television, Inc. v. FCC, 502 F.zd 443, 448 (D.C. Cir. 1974).

This Court has likewise used a flexible approach in determining when an

FCC decision is reviewable under 402, and has rejected the assumption "that an

FCC order must be either a regulation or an adjudication in order to trigger

reviewability by a court of appeals under [$402]." Wilson v. A.H. Belo Corp., 87

F.3d 393, 398 (9th Cir. 1996). For example, in U.S. West Communications, Inc. v.

Hamilton,224 F.3d 1049, 1055 (9'h Cir. 2000), this Court held that a"Loal

Competition Order" was a final order because it "determines rights and gives rise

to legal consequences."

The FCC's actions in Public Notice DA 10-863 (including the Rule Change

stated in Paragraph43 thereof, and implemented via the Two-Bidder Decision at

foofirote 2 thereof are final ageny actions. Firstly, these actions both "determine

rights and give rise to legal consequences." They determine the identity of

Qualified Bidders and unqualified applicants, and their respective rights in the

auction process.

Secondly, FCC statutes and regulations suggest that FCC Public Notices
identifuingqualifiedbiddersarefinal.Forexample,47USC$405(a),statesthat

"The time within which a petition for review must be filed in a proceeding to

which section a02@)...applies...shall be computed from the date upon which the

Commission gives public notice of the order, decision, report, or action

complained of'(emphasis added); see also 47 CFR $1.103(b) (FCC action

becomes final on date of public notice as defined in 47 CFR $l.a@)); 47 CFR

$ 1.4(bX2) (for non-rulemaking documents, public notice occurs on release date).

Wilson,Supra,at397(..TheDeclaratoryRulingbecame.final,onthedateof

public notice"); U.S. v. Peninsula Comrnunications, nc.,287 F.3d 832, 837 (9th

Cir.2002).

The finality of FCC Public Notices (such as DA l0-863) identifliing

qualified bidders in public auctions is also supported by U.S. Circuit Court rulings

which have held that preliminary FCC decisions regarding license preferences are

severable from the license determinations themselves, and are therefore

independently reviewable. See, e.g., Freeman Engineering Assoc. v. FCC,I03

F.3d I 69, 177-78 (D.C. Cir. 1997) (determination of whether apafi is entitled to a

"pioneer's preference" is not "ancillary to the license itself," and therefore is

appealable under 47 U.S.C. $a02(a)); Vernal Enterprises, Inc. v. Schrecongost,355

F.3d650,657(D.C.Cir.2004)(..[E]veninasituationinwhichtheorderatissue

strongly foreshadowed the grant of a 402(b) application," the order is not anclllary
to the grant of a license); Coalition v. Noncommercql Media v. FCC,249 F.3d

1005, 1008 (D.C.Cir. 2001).

The underlying FCC staff practice permitting applicants to disclaim

previously-certified bidding credit levels, also has the effect of a final agency

decision, since the practice has been used for years, and will continue to be used,

in public auctions. The utilization of this practice in DA l0-863's Determination

does not merely embody an isolated aberrant decision by the FCC . Rather, it is

only the latest in a series of determinations by the FCC (discussed below) in which

it has repeatedl) and expressllz permitted parties to disclaim bidding credit

eligibility status at any point in the auction process. Thus,

challenging the licensing results of the Determination after Auction 87 by petitions

to deny andlor for reconsiderationa will not remedy the regulatory violation at

issue in this case, because the problem does not stem simply from the FCC's

decision in this matter, but rather from a long-standing FCC practice which will

not be curtailed absent court intervention.

By "re-engineering" $1.2105(b) in the Rule Change, the FCC has attempted

to implement a defacto revised regulation without the notice and comment

procedures mandated by the Administrative Procedure Act. See Barahona-Gomez

v. Reno,167 F.3d 1228,1235 (gth Cir. I 999); Yesler Terrqce Community Council v.

o
See 47 USC $$309(d),405.
Cisneros,3T F.3d 442, 449 (9th Cir. 9\; Southern Calirnia Aerial Advertisers'

Assoc. v. Federal Aviation Admin.,881 F.2d 672 (g'h Cir. 1989). Under these

procedures, petitioners would have ordinarily had standing to challenge a revision

to the bidding credit rules. See, e.g., Graceba Total Communications, Inc. v. FCC,

1 I5 F.3d 1038 (D.C. Cir. I 997). They should not be deprived of the opportunify to

do so by the caprice of the FCC.

For each of the above reasons, this Court has subject matter jurisdiction over

the instant appeal.

b. Authority under FRAP 18

Moreover, this Motion is proper under FRAP 18. This Rule requires that

motions for stays of agency action be brought in the first instance before the

agency, unless such a motion would be "impracticable." Such "impracticability"

is evident here. First, as noted above, on May 28,2010, Petitioners requested that

the FCC reconsider both components of its Determination (See Exhibit 2).

Petitioners have yet to receive a response from the FCC on this request. Given the

extremely short time frame between now and the Auction currently scheduled for

June 1 5,2010, Petitioners respectfully submit that it would be "impracticable" to

undertake further efforts to persuade the FCC to vacate DA 10-863.

Second, for the lastfive years before the Exhibit 2 reconsideration request,

the FCC has had every opportunity to follow the clear language of $1.2105(b), but

10
has instead concocted a written policy which undermines the regulation. The time

is ripe for judicial intervention.

2. Petitioners Meet the standard for stays Pending Appeal

In adjudicating stays of agency action pending appeal, this Court must

consider four factors: (i) likelihood of success on the merits, (ii) the prospect of

irreparable harm if relief is withheld, (iii) the possibility of harm to other parties if
relief is granted, and (iv) the public interest. ^Se
FRAP Cir. R. 18. Each of these

factors favors Petitioners, as demonstrated below.

a. Likelihood of success on the merits

The FCC must follow its own rules and decisions. Nqtional Cable Television

Assoc, Inc. v. FCC,747 F.2d 1503, 1509 (D.C. Cir. 1984). Petitioners have a

likelihood of success on the merits, because the FCC, by virtue of the

Determination, has plainly violated its rules regarding amendments to Form 175.

In this regard, 47 CFR $ I .2105(bX2) states, in relevant part:

The Commission will provide bidders a limited opportunify to cure


defects specified herein (except for failure to sign the application and
to make certifications)....During the resubmission period for curing
defects, a short-form application may be amended or modified to cure
defects identified by the Commission or to make minor amendments
or modifications. After the resubmission period has ended, a short-
form application may be amended or modified to make minor changes
or correct minor effors in the application. Major amendments cannot
be made to a short-form application after the initial filing deadline.
Major amendments include changes in ownership of the applicant that
would constitute an assignment or transfer of control, changes in an
applicant's size which would affect eligibility for designated entity
1l
provisions.. ..Minor amendments include, but are not limited to, the
correction of rypographical effors and other minor defects not
identified as major. An application will be considered to be newly
filed if it is amended by a major amendment and may not be
resubmitted after applicable fi ling deadlines.

Thus, $1.2105(bX2) unambiguously provides that "major amendments" to

Form 175s are strictly prohibited.t Maor amendments are deemed to include any

amendment relating to an applicant's size which would affect eligibility for

Designated Entity status under FCC rules (sought to be made after the Form 175

deadline). The regulation further provides that in no event is a failure to supply an

accurate certification curable by amendment or otherwise. Id. ("The Commission

will provide bidders a limited opportunity to cure defects specified herein (except

for failure to sign the application and to make certifications).") Furthermore, "a

major ownership amendment to an application for which the filing window has

closed would normally make that application untimely and therefore unacceptable

for filing." In Re Biennil Regulatory Review,13 FCC Rlcd9672 at*40-41

(1ee8).

'Indeed, in an earlierAuction 87 Public Notice, DA l0-588, datedApril 30,2010,


(Exhibit 6) the FCC explains (atparagraph 16 and footnote 17) that after the Form
175 submission deadline: "If any application is changed to effect a major
amendment, the applicant will be ineligible to bid in the auction. ...See 47 C.F.R. $
1.2105(b)(2)" and "The Commission's electronic Form 175 is designed to prevent
inadvertent major changes by applicants. Therefore, applicants are not permitted to
make changes to the following data fields at this time: applicant name,legal
classification, certifier, bidding credit, and license selection." (emphasis added)
t2
By its terms, $ 1 .2105(bX2) applies to any amendments relating to

Designated Entity size. It encompasses amendments in which an applicant avers

that it is smaller than originally claimed. It also encompasses amendments in

which an applicant avers that it is larger than originally claimed, thereby

disclaiming a bidding credit (the circumstance presented here). In the course of

enacting S1.2105(bX2), the FCC considered a proposal that would have permitted

applicants after the short-form deadline to disclaim or "down-grade" a claim for a

bidding credit discount via an amendment (in the manner attempted by Silke and

Two-Way, and endorsed by the FCC in DA 10-863):

[C]ommenters'opinions differ on what types of amendments the


Commission should categorize as major or minor. For example,
AT&T and ISTA argue that major amendments should include all
changes in ownership that constitute a change in control, as well as all
changes in size that would affect an applicant's eligibility for
designated entity provisions. In contrast, Metrocall contends that all
changes in ownership incidental to mergers and acquisitions, non-
substantial pro forma changes, and involuntary changes in ownership
should be categonzed as minor. Mefrocall also states that an
applicant should not be permitted to upgrade its designated entit-v
status after the short form filing deadline (i.e., go from a "small" to
"very small" business), but should be permitted to lose its designated
entity status as a result of a minor change in control (i.e., exceed the
threshold for eligibility as a small business).

63 FR 2315,2322 (January 15, 1998), emphasis added.

The FCC rejected this proposal:

[W]e believe tha| a definition of major and minor amendments similar


13
to that provided in our PCS rules is appropriate. After the short-form
filing deadline, applicants will be permitted to make minor
amendments to their short-form applications both prior to and during
the auction. However, applicants will not be permitted to make major
amendments or modif,rcations to their applications after the short-
form filing deadline....Consistent with the weight of the comments
addressing the issue major amendments will also include any change
in an applicant's size which would affect an applicant's eligibilify for
designated entity provisions....In contrast, minor amendments will
include, but will not be limited to, the correction of typographical
effors and other minor defects, and any amendment not identified as
major.

rd.

Indeed, in its older administrative decisions, the FCC itself recognized the

importance of adhering to the letter of Section 1.2105(b)(2). In In re: Two Way

Radio of Carolina, Inc.,14 FCC Rcd 12035 (1999), Two Way sought a waiver of

Section 1.2105(b)(2) to permit it to increase its eligibility for a bidding credit. The

FCC denied the waiver request, holding that a"modification of an applicant's

small business status does not constitute a minor change under our competitive

bidding rules . . ;' Id., at 12039. (emphasis added). The FCC determined that "a

change that would result in granting the applicant u dffirent stutus ar affording

the applicant greater financial benefits than it has requested in its application" was

barred. Id., at 1204L (emphasis added).u The FCC properly concluded that a

u By virtue of the Determination's Rule-Change component, the FCC allows


bidders to bid with credits greater than those certified and deserved, as long as the
bidder pays for those credits after the auction (i.e., the "adjustmenf'). As such,
that Rule Change is more damaging to lawful competitors and auction integrify
t4
contrary ruling would "undermine the integrity of the auction itself." Id.

In the instant case, Silke and Two-Way disregarded these FCC rules. Each

of them sought, after the application deadline associated with Public Auction 87,

to have the FCC accept application amendments disclaiming (in the case of Two

Way) or downgrading (in the case of Silke) originally-certified bidding credit

status for small business Designated Entities.T

These proposed amendments are unambiguously prohibited by

$ 1.2105(b)(2), which, as discussed above, bars amendments relating to "changes

in an applicant's size which would affect eligibility for designated entity

provisions." Silke and Two Way also violated the related $1.2105(bX2) rules on

certifications. As noted supra, this regulation states that "The Commission will

provide bidders a limited opportunity to cure defects specified herein (ecfor

failure to sign the application and to make certifications)" (emphasis added).

Thus, under the plain language of the regulation, there is no circumstance under

which a failure to make a required certification is permitted. One such required

certification contained in Form 175 is Certification 6, which requires short-form

than the waiver sought by Two Way in the 1999 matter, because it fosters false
certifications by bidders. As discussed, $ 1 .2105(b)(2) clearly disqualifies an
applicant whose certification as to a level of bidding credit was false at the
application deadline, whether the actual credit deserved was higher or lower.

'As noted in DA 10-863 (at footnote 2) Silke sought to amend its application to
request a25% bidding credit instead of a35o/o bidding credit, whereas Two-Way
sought to amend its application to disclaim a billing credit altogether.
15
applicants to "certi$,...that if a bidding credit eligibility is claimed in block 10, the

applicant is eligible for any special provisions." The obligation to make a

certification includes the obligation to make that certification accurately.s

Otherwise, the certification requirement would be bereft of any meaning.

Thus, the Two-Bidder Decision, permitting Silke and Two-Way to correct

their falsely certified Designated Entity bidding credit statuses long after the Form

175 submission deadline, violates $1.2105(bX2). The FCC has abrogated its

responsibility thereunder to: (i) disallow major amendments to short form

applications and (ii) disqualify applicants that have submitted false Designated

Entify certifications. Instead, the FCC ratified a bidding process which directly

conflicts with the letter and spirit of its own regulations:

43 ....Bidders must immediately report any change affecting their


eligibility for a bidding credit. Bidders should clearly state the nature
of the change in an amendment to their short-form application and in
the summary letter referenced above. In cases of diminished bidding
credit elisibili lSSlOn Wl
in the bidding credit prior to the computation of an) doum and final
pal,rment amounts due lafter end of the auction].

'Short form applications are processed electronically by the FCC. The FCC's
electronic application system does not permit an applicant to submit a Form 175
without entering a data field associated with each required certification. Thus, if
$1.2105(bX2)'r "certiftcation" requirement is to have any purpose whatsoever, it is
to ensure that certifications are made accurately. In the Silke proposed amendment
(Exhibit 5), it makes the remarkable suggestion that revealing its false certification
should cure it: "To deny the revised bidding credit would be a disincentive to
applicants to address any reporting effors...." As demonstrated above, this
assertion offends the plain language of $1.2105(bX2).
t6
See Public Notice DA 10-863, atpg.9 (emphasis added).

The emphasized language shows how the FCC has fashioned an

unauthorized process from whole cloth. Under $ 1.2105(bX2), after the short-form

application deadline, the FCC should automatically disqualiSr any applicant whose

certified Designated Entity status is discovered to have been false or incorrect

when originally made. Instead, the FCC assumed, without justification, that it had

the authority to permit aparty to escape the rule's requirements and compete in an

auction with undeserved bidding credits, so long as the agency can "make

appropriate adjustments in the bidding credit" after the bidding is over. The

problem with this approach is not only that it directly contravenes the law (for the

reasons stated above) but also that it vitiates the law's purpose; to promote and

protect fair competition under a competent fair auctioneer.

This is not an isolated FCC administrative error; rather, the unauthonzed

"adjustment" policy has in fact been cited by the FCC in numerous other

adminisfrative decisions. See In re: l6 Bidders Qualified Tb Participate In

Auction 86,2009 FCC LEXIS 5271at*25 (Oct. 8,2009); InreAuction of Aws-l

& Broadband PCS Licenses,, 23 FCC Rcd 11 850, 1 I 85 8 (August 4, 2008); Auction

of 700 MHz Band Licenses - Auction 73,23 FCC Ftcd276,281 (January 14,2008);

In re Five Bidders Qualified to Participate in Auction No. 72,2007 FCC LEXIS

4124 at*17 (June 5,2007); Auction Of Broadband PCS Spectrum Licenses; 23

t7
Bidders Qualified to Participate in Auction No. 7l,22FCC Rcd 8347 *17 (May 2,

2007); Auction Of 1.4 Ghz Band Licenses; Nine Bidders Qualffied to Participate

in Auction l,{o. 6922, FCC Rcd 605 *14 (January 23,2007); Auction Of Advanced

Wireless Services Licenses; 168 Bidders Qualified to Participate in Auction No.

n
66,21 FCC Rcd 8585 n. 15 (July 28,2006) The time is ripe for the FCC's ultra

n
The FCC's bidding credit "adjustment" policy can be directly traced to an earlier
auction involving certain of Petitioners (FCC Auction No. 61), in which licenses
were awarded to a company known as Maritime Communications and Land
Mobile, LLC ("MCLM"). During the application process for this auction, MCLM
sought and obtained a 3s%bidding credit from the FCC as a small business entity.
After Petitioners uncovered evidence that this representation by MCLM was false
(on the grounds that MCLM had failed to properly attribute the revenues of the
spouse of its principal in claiming designated entity status), Petitioners sought to
have the subject licenses revoked. MCLM ultimately obtained permission from
the FCC to disclaim its bidding credit. Nonetheless, MCLM's principals are
currently being investigated for misrepresentations made during this auction.
http://rvwrv. scribcl.corrr'doc/2 83 3 8 1/FCC-En orce m ent-Bureau-Letter-o f'-
Investi rati on-cl ated- 2 -2() -20 1 0-to- S and ra- DeP ri est-o f- M C LM

At every point in the process, the FCC has stalled. When the Petitioners
filed a Petition to Deny MCLM's license grant, the FCC failed to hold an
expedited hearing as require dby 47 USC $309(d) and 47 CFR $ I .2108. The FCC
also failed to rule on Petitioners'reconsideration request in the MCLM matter
within 90 days, as requiredby 47 U.S.C. $405(b). Nearly five years later, this case
is still on administrative appeal before the FCC, and the FCC has yet to apply
91.2105(bX2) to MCLM. In each of these appeals, the FCC has steadfastly
maintained that MCLM was permitted to disclaim its bidding credit on the grounds
that this disclaimer was purportedly a minor apphcation amendment . See In re:
Maritime Communications/Land Mobile, LLC, 22 FCC Rcd 4780 (March 9,2007);
2I FCC Rcd I 3135 (Novemb er 27 , 2006); 2l FCC Rcd 8794. In a subsequent
effort to defend and perpetuate this untenable position, the FCC began its
"adjustment" policy. Thus, in the Public Notices associated with subsequent
auctions, the FCC began to include language permitting short-form applicants to
disclaim bidding credits at subsequent stages in the application process. The FCC
18
vires adjustment policy to be curtailed.

Apart from being violative of the CFR, this myopic adjustment practice

ignores the fact that, under Congressional mandate, the FCC auction system is

designed to protect competition,notthe FCC. See 47 U.S.C. 309(1)(3Xb) (noting

that the competitive bidding system is designed for the purposes 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. . ."). Section 1.2105(b) is designed to fuither this goal, by keeping

unauthorized bidders out of actions.

An FCC process whereby retroactive adjustments are made to undeserved

bidding credits used to win licenses may provide recompense to the FCC, but it

does not cure the severely anticompetitive effect of the original misrepresentation.

The principal value of a bidding credit is not a function of the actual amount of the

credit as such (i.e., a lower price to be paid by the winning bidder after the

auction). Rather, its value stems from the advantage it confers upon eligible

bidders by permitting them to outbid larger entities and thereby win auctions. The

clearly recognized that if it endeavored to change Section I.2105 via the proper
notice and comment procedures, it would be tacitly admitting that the regulation
was not applied properly in Public Auction 61. Instead, the agency tried to
effectuate a surreptitious de facto revision to the CFR which plainly violated the
Administrative Procedures Act. See Barahona-Gomez; Yesler Terrace Community
Council ; Southern Calirnia Aerial Advertis ers' As s oc., s lpr a.
T9
credit, in effect, confers upon an eligible bidder more money with which to bid.

In most instances, the economic value of an awarded license will far exceed the

amount of the bidding credit.

Under the FCC's "adjustment" scheme, auction applicants are economically

incentivized (and at a minimum allowed) to misrepresent their eligibility for a

bidding credit, provided that the ultimate value of the awarded license exceeds the

amount of any eventual adjustment. They are motivated to misrepresent their

bidding credit status (thereby permitting them to outbid competitors at auction)

because they know that the FCC will permit them to correct this misrepresentation

once they have already been awarded a spectrum license. In effect, they are

permitted to bid with funds (i.e., govemment funds, in the form of the credit) they

do not have. So long as an FCC "adjustment" is the only consequence of this

practice (as opposed to auction disqualification, license revocation, or FCC

penalties), this practice will persist. This sort of administrative gamesmanship

should not be countenanced. See Superior Oil Co. v. Udall, 409 F.2d 1l 15, Il20
(D.C. Cir. 1969) and In re: Two Way Radio of Carolina, Inc., 14 FCC Rcd at

12040 (discussed in greater detail infra).

Finally, 47 U.S.C. $309X5) states that "No person shall be permitted to

participate in a system of competitive bidding pursuant to this subsection unless

such bidder submits such information and assurances as the Commission may

20
require to demonstrate that such bidder's application is acceptable for filing."

Silke and Two-Way's Form l75s were never acceptable for filing, because they

contained materially false certifications. Therefore they should not be permitted to

participate in Auction 87.

b. Irreparable Harm

"A bidder in a government auction has a right to a legally valid

procurement process." High Plins [lireless, L.P v. FCC,276F.3d 599, 605 (D.C.

Ctr.2002). Accordingly, bidders are entitled to redress where they are placed at a

"substantial competitive disadvantage" in an auction. Alvin Lou Media, Inc. v.

FCC,571 F.3d 1,6 (D.C. Cir.2009); see also, AT&.Tv. FCC,602F.2d401,409

(D.C. Cir.1979) ("We do not, of course, dispute that Sections 402(a) and 2342

contain sufficient play to permit judicial intervention where it seems thaTan

agency has departed from the normal course of its proceedings to make gratuitous

prejudicial determinations or has otherwise cloaked the kinds of actions and harms

normally associated with orders in non-reviewable garb"). Indeed, United States

Courts of Appeal have recognized that in appropriate circumstances, a stay of an

FCC auction is the only effective remedy available to a litigant. See Cincinnti

Belt Telephone Co. v. FCC,1995 U.S. App. LEXIS 32938 (6th Cir. October 8,

1995) (Sixth Circuit grants motion to stay FCC auction pending decision on

merits).

2l
In this case, Petitioners will be irreparably harmed if a stay ofAuction 87 is

not issued. An auction in which entities are permitted to misrepresent their

bidding credit eligibility is an auction tainted at the outset. If Auction 87 proceeds

under the Determination's Rule Change and subsidiary Two-Bidder Decision, it

will be virfually impossible as a practicalmatter for Petitioners to undo the results

or obtain a fair and timely remedy. By this point, bidders with falsely certified

and/or undeserved bidding credits would have already been permitted to

participate in the bidding process under Paragraph43 of DA l0-863, tainting this


'Whether
process at the very outset. these bidders are ultimately the high bidders

or not, their bids would have artificially compelled law-abiding bidders to increase

their bids, in order to keep pace with higher bids bolstered upon undeserved

credits.

Moreover, although the FCC may claim that Petitioners would have the

opportunity to challenge this license award after it occurs via aPetition to Deny,l0

such a claim would be a sham. In promulgating its "adjustment" policy in this

and previous auctions, the FCC has made it clear that, notwithstanding the plain

language of Section 1.2105(b), it will not withhold a license award on the grounds

that bidders included false certifications regarding bidding credit eligibility in their

short-form applications. Instead, the FCC has repeatedly, for years, made it clear

'o See 47 U.S.C. 309(d).

22
that it will simply make a post-auction "adjustment" to the bidding price

(culminating in the Rule Change embodied by DA 10-863), leaving applicants who

have played by the rules to their own devices. ,See In re: I6 Bidders Qualified To

Partcipate In Auctton 86; In re Auction of Aws-l & Broadband PCS Licenses;

Auction of 700 MHz Band Licenses - Auction 73; In re Five Bidders Qualified to

Partcipate in Auction No. 72, supra. Thus, all the evidence shows that there is

virtually no chance that the FCC will modiff its practice in Auction 87 (or for that

matter in any future wireless auction) absent court intervention.

Furthermore, as amatter of administrative practice, the FCC rarely, if ever,

"redoes" auctions (on the basis of $ 1.2105(b) violations or on other bases). Thus,

any administrative victory Petitioners may eventually achieve before the FCC

would be nominal and pyrrhic, at best. Moreover, the delay and attendant expense

necessarily engendered by an administrative challenge to licenses granted under

the unlawful Determination would render such a challenge completely ineffective

to redress the harm that Petitioners would sustain. Patent violations of $ 1.2105(b)

by the FCC should be addressed at this time, prior to further and irreversible

comrption of the auction process.

c. Balance of Hardships

The balance of hardships clearly favors Petitioners. As demonstrated

above, Petitioners will be irreparably harmed if this Court does not stay
Auction 87. By contrast, no other party with an interest in the Auction

(i.e., qualified bidders) will suffer a material adverse affect if a stay is

issued. In particular, since the spectrum licenses which are the subject of

Public Auction 87 have yet to be issued by the FCC, no party will suffer an

adverse economic effect in the event of a stay. It should be noted, in this

regard, that the FCC has postponed this auction once already.

d. Public Interest

Finally, the public interest strongly favors granting a stay. As noted

above, "a bidder in a government auction has a right to a legally valid

procurement process." High Plains Wireless, L.P., at 605. Moreover, aS

discussed, the expressly-declared public purpose underlying the bidding

system is to promote competition. See 47 U.S.C. 309(1). This public interest is

disserved where bidders are permitted to blatantly misrepresent their bidding credit

eligibility status with the tacit (if not express) approval of the FCC. As the DC

Circuit held over forty years ago in a case involving the Department of the

Interior:

The Secretary's concern . . . misses . . . the important public


policy underlying strict rules in bidding. It is . . . very
important that bidders who comply faithfully and scrupulously
with bidding regulations should not in effect be penalizedby
the errors of less careful bidders who fail to follow correct
procedures.

Superior Oil Co. v. (Idall,409 F.zd 1115, ll20 (D.C. Cir. 1969). Here, as in
24
Superor Oil, an agency has permitted applicants to participate in the bidding

process contrary to its regulations, has damaged the integrity of the agency

auction process and disadvantaged rule-abiding bidders. This should not be

permitted to persist. See also,In re: Two Way Radio of Carolina, Inc.,14 FCC

Rcd at 12041(attempted change in small business entity status undermines "the

integrify of the auction itself.").

B. In the Alternative, This Court Should Issue A Writ of


Mandamus

In the alternative, this Court should issue a Writ of Mandamus under FRAP

21. This Court has the authority to do so where it would not otherwise have

subject matter jurisdiction over an agency determination (for example, under

circumstances where the agency decision at issue is non-final) See, e.g., Public

(ltitity Commissioner of Oregon v. Bonneville Power Administration, T6T F.2d

622,630 (9'h Cir. 1985).

In order to analyze the propriety of exercising its mandamus jurisdiction, the

Court fypically applies a five-factor test first described in Bauman v. U.S. Dist. Ct.,

557 F.2d 650, 655 (9th Cir. t977): (i) whether the party seeking the writ has no

other adequate means, such as a direct appeal, to attain the relief he or she desires;

(ii) whether the petitioner will be damaged or prejudiced in a way not correctable

on appeal; (iii) whether the determination at issue is clearly effoneous as a matter

of law; (iv) whether the determination at issue reflects an oft-repeated effor, or


25
manifests a persistent disregard of the federal rules; and (v) whether the

determination at issue raises new and important problems, or issues of law of first

impression. While these factors should inform the Court's decision, they are not

meant to supplant reasoned and independent analysis. Cole v. U.S. Dist. Ct. for the

Dist. of ldaho,366 F.3d 813, 817 (gth Ctr.2004). Rarely if ever will a case arise

where the guidelines point in the same direction, or even where each guideline is

relevant or applicable. Bauman, 557 F.2d at 655.

The first three Bauman factors clearly favor mandamus relief. As noted

above, Petitioners have no other adequate means to attain the relief sought. The

FCC will not withhold or revoke license awards on the grounds that

bidders included false representations regarding bidding credit eligibility.

The FCC does not redo auctions (and is particularly unlikely to redo

Auction 87 because it is uniquely complex). The expense associated with

filing a Petition to Deny with the FCC and thereafter seeking appellate

review would be cost-prohibitive to Petitioners. This process would also

likely take years, during which time Petitioners will likely suffer

irreparable economic injury and prejudice. For these very same reasons,

absent mandamus, Petitioners will likely be prejudiced "in a way not


correctable on appeal." Also, for the reasons discussed, both components of the

Determination are "clearly erroneous as a matter of law" under the third factor.
(Jnder the fourth factor, the FCC's adjustment policy embodies an "oft repeated

error." Finally, the determination at issue raises new and important problems,

namely, the integrity of a key component in all FCC wireless license auctions and

the integrity of the FCC as a competent fair auctioneer.

CONCLUSION

For each of the foregoing reasons, Petitioners respectfully request

that the instant Motion be granted.

Respectfully submitted,

Dated: June 8, 2010

SAMAN ILP
PATRTCK J. RICHARD (SBN 131046)
(Counsel of Record)
pri ch ard@,no s saman. com
TAMIR D. DAMARI

50 California Street, 34th Floor


San Francisco, California 94ll I -47 07
Telephone: (415) 398-3600
Facsimile : (41 5) 398-2438

Attorneys for Petitioners

27
EXHIBIT 1
';reJ PUBLIC NOTICE
Federal Gommunications Commission News Media lnformation 202 / 418.0500
lnterne hltpJ/www.fcc.gov
445 12th St., S.W. TTY: l-888-835.5322
Washington, D.C. 20554

DA 10-863
M^y 27
'2010

UCTION OF LOWER AND UPPER PAGING BANDS LICENSES


69 BIDDERS QUAI,IFIED TO PRTICIPATE IN AUCTION 87

AU Docket No. 09-205

l. In this Public Notice, the Wileless Telecommunications Bureau ("Bureau") identifies 69


applicants found to be qualified to bid in the upcoming auction of9,603 licenses for lower and upper
paging tanos spectrum (Auction 87).1 Bidding in Auction 87 is scheduled to begin on Tuesday, Jrure 15,
10t0. ttris public Notice contains bidding instructions and other important information regarding
Auction 87. It also addresses the continuing obligaiions and auction procedures for all Auction 87
applicants, including those that have not qualif,red to participate.

I. QUALIFIED AND NON-QUALIFIED BIDDERS


A, Qualified Bidders
2. Attachment A to this Public Notice lists the name ofeach ofthe 69 qualified bidders and each
bidder's claimed bidding credit revenue range.2 Designation ofan applicant as qualified tobidinthe
auction indicates that the applicant has provided the certifications and infolrnation concerning its
quali{icatiols for participation in the arction and timely submitted a sfficient upfront payment as
required by the Comnission's competitive bdding rules.'

I
Se "Auction ofLower and Upper Paging Bands Licenses Scheduled for May 25, 2010; Notice and Filing
Requielnents, Minimum opening Bids, upfiont Payments, and other Procedrcs for Auction 87," AU Dockct No.
Og-t05, Publc Noice, DA 10-18 (rel. Jan .22,2010) ("Auctiotl 87 Procedures Public Notce"). See a,/so "Auction
oflower and Upper Pagilg Bands Licenses Rescheduled for June 15, 2010; Status of Short-Fom ApPlications to
Participate in Aution 8?," AU Docket N o.09-205, Pubtc Nollce, DA 10-588 (rel. Apr' 13,2010) ("Auction 87
Status Publc Noce").

Two applicants Silke Communications ad Two-Way Communications qualified as bidders in Auction 87, but
2

are not tigible for the bidding credit originally requested in their respective short-form applications. Specifically,
Silke Communications atnended its application and requested the 25 percent bidding credit instead ofth 35 pecent
bdding credit. Two-Way Communications oiginally requested the 25 percent bidding credit, but amended its
appliction to withdraw its request fo a bidding credit altogethe- Thcrefore, these applicants are qualified, but only
with the bidding credit levcl as shown in Attachment A. tn addition, one qualified applicant requested to chatge its
,'Teletouch Paging LP" to "TTP Licenses, Inc." This name change is leflected in Attachment A and
name from
within the Comrnission's electonic bidding system database. Finally, onc qualified applicant - Dallas County
Community College District corrected its FCC Registration Numbe ("!'RN") associated with its application. The
coect FRN is 0001673979, which is reflected in Attachment A
Under the Comrnissiol,s two-phased auction application process, a winning bidder must submit a long-form
3

application after the closc ofAuction 87 to dlnonstate its qualifications to hold a Commission license and, if a
3. In order to participate effectively in the auction, qualified bidders should again familiarize
themselves with the aution rlles, procedures, and other information describedinthe Auclion 87
procedures public-todce and subsequent public notices.a These public notices and other documents
related to Auction 87 are available on the Commission's auctions website at
http://wireless.fcc.gov/auctions/. This Public Notice provides additional guidance
B. Non-QualifiedBidders
4.AttachmentBtothisPublicNoticelistseachapplicantthatSubmittedashort-form
application but did not qualiff to bid in this auction. These applicants retnain subject to the .
immission's rules ptohibiting certin communications in connection with Commission auctions.'
. REGISTRATION AND BIDDING ACCESS
A. RegistrationMaterils
5. eualified bidders have been automatically
registered for the auction. Registration materials
will be sent to the bidder's contact person at the contact address identified in the bidder's short-form
application. Upon receipt, each bidder should be in possession ofthe following:
. At least iwo RSA SecurlDo tokens
. Integrated Spectrum Auction System (ISAS) Bidder's Guide
. FCC Auction Bidder Line phone number

6.
eualified bidders are solely responsible for ensuring the secudfy oftheir
computer systerns
and their registration naterials and for ensudng tlrat only authorized bidders place bids on their behalf.
The Com.mission assumes no esponsibility or liability fo these matters.

WARNINC: Any unauthorized entiqi accessing or tampering with an FCC of otJler govemment
computer system will be prosecuted to the full extent of the law.
?.
Any qualifred bidde listed in Attaclnnent A ofthis Public Notice that has not received the
registration mailing by 12:00 noon Eastern Time (ET) on Wednesday, June 9, 2010, must contact the
Ar]ctions Hotline dire;tly at (717) 338-2868. Qualihed bidders nrust have these registration materials to
submit bids, Receipt ofihe registration mailing is critical to parlicipating in both the rnock auction and
the actual aucton, lld it is theresponsibility of each qualified bidder to ensure that all registraton
information has been received.
B. RegistrationMaterialReplcement
only a person who has been
8. In the event that a bidder's SecudDD tokens are lost or damaged,
designated as an authorized bidder, the contact person, or the certifying offrcial on the applicant's short-
fonri application may request replcements. Qualifred bidders requiring replacement ofthese items must
call Tecjmical S"pprt af iazl 4S0-3201, option nine; (202) 414-1250; or (202) 414-1255 (TTY)'

bidding credit is requested, its eligibility for the requested bidding credit. Thus, a determinatio that a short-form
applica-tion is compiete and compies with the Commission's competitive biddig_rul:: utd9Ji"i:, .iol _ _ ,,
"
deLrminative ofan applicant's qualifications to hold a license or entitlmnt to abidding credit. see47cF.R.$$
1 .2lyj - 1.2109: see also Amenment of Pat I of tle Commission's Rules - Competitive Bidding Procedures, PP

Docket No. 93-253, ,Se concl Reporl and order, FCC 94-61,9 FCC Frcd 2348,2376-7', ffi 163-168
(1994). Requsts
concerning applicaiion qualifications and eligibility for a bidding credit arc generally consideed after the auction
during the-long-form application proccss. In the event that an applicant is found unqualified to be a commission_
licene or ineigible foi clairned desigrated entity benefits, it will be liable fo any obligations incurred as a esult
ofits parlicipation in the auctiol. See generaLly 47 C.F.R $ 1.2109.

Auctott 87 Pt"ocedures Public Nolice a'd Attction 87 Status Public Nolce


a

5
See 4'1 C.F.R. $ 7.2105(c); see olso Auction 87 Procedtll'es Ptlblic Nolce atn 12'
C. Bidding Access
9. The Commission will conduct Auction 87 over the Intemet. Qualihed bidders can access the
Integrated spechum Auction system ("ISAS" or "FCC Auction System") at ht://auctions.fcc.gov
or
http:'//auctions2.fcc.gov. Bidders choosing to bid electronically should review the Integrated Spectrum
Atrction System (ISS Bidder's Guicle piovicled in the registration materials. Bidders are reminded that
Apple@ Mac OSo is not ctrrrently supported.

10. In addition to bidding electronically over the Intemet, qualified bidders will also have the
option ofbidding by telephone via the Auction Bidder Line. The Auction Bidder Line telephone number
wltt be suppliedl ihe registratiotr materials sent to all qualified bidders. Bidders choosing to bid
electroni-Iy may use th; Auction Bidder Line as an altemate method of bidding. When submitting bids
by telephon; bidders should alow sufficient time to bid by placing their calls well in advance ofthe
close of a round,o
1 1 . Each authorized bidder nust have his or her own SecurlD@ token,
regardless of whether the
bidder chooses to bid electronically or by telephone. Applicants with only one authorized bidder will be
issued two SecurID@ tokens, while applicants with iwo or three authorized bidders will be issued tbree
tokens. For security puoses, the SurID@ tokens and the inshlctions for using thern are mailed only to
the contact person t the contact address listed on the applicant's short-form application. Please note that
each Securl)@ token is tailored to a specihc auction. SecurlDo tokens issued fo other auctions or
obtained from a source other than the FCC will not work for Auction 87.

12. Please note that the SecurID@ tokens can be recycled, and we strongly encourage bidders to
return the tokens to the FCC. We will provide pre-addressed envelopes that bidders may use to retum the
tokens once the auction is closed.
D. Bidding Contingency Pln
Bidders should develop comprehensive contingency plans that can be quickly implemented if
I3.
bidders experience clifficulty participating in the auction. While the FCC will conect any pt oblems
within Comission-controlie facilities, bidders are solely responsible for anticipating and overcorning
problems such as bidder computer failures or other technical issues, loss ofor problems with data
connections, telephone senici intermptions, adverse local weather conditions, unavailability of
authorized biddeis, or the loss or breah of conhclential security codes. As referenced above, bidders will
receive the Auction Bidder Line telephone number in their registration mterials'
III, BIDDING TOOLS
A, Mock uction
14. The Bureau strongly encourages all qualifred bidders to participate in the mock auction that
will be conducted Friday, Jun 11, 2010. The mock auction will allow qualifred bidders to familiarize
themselves w.ith the FCC Auction System and to ask FCC auction staff and technical support staff
questions about the system ard bout auction conduct. The Bureau will conduct this auction over the
Intemet, and biddes will also have the option ofbidding by telephone.
15. Qualifred bidders can access the rnock auction at http://auctions'fcc gov or
ht://auctions2.fcc,gov. Bidders choosing to bid elechonically should review the Inte$ated Spectrum
A;ction Sysrem (ISS) Bidder's cuide provided in the regisation materials. Qualified bidders that wish
to place bids by tlephone should use th Auction Bidder Line telephone number supplied in the
Auction 87 regish-ation materials.
16. The mock auction will include a selection of 1,050 licenses out ofthe 9,603 available in
Auction 87 and will follow the rules goveming the actual auction. The mock auction will be identihed as

Mock Auction 74. The FCC Auction System will also assrme that each bidder submtted an up&ont

6
Because the lcngth ofa call to place bids nray vary, bidders should allow a minimum of 10 mnutes

J
payrnent sufficient to give the bidder initial (maximrun) eligibiliry of 525,000 bidding units. The rnock
auction will simulate the start ofthe auction, and each bidder will be required to be active on 80 percent
of its cuffent bidding eligibility. If a bidder does not meet this requirefirent, it lvill have a waiver
automatically applied (ifthe bidder has any waivers available), or its current eligibility will be
permanerfly reduced (ifthe bidder has no waivers remaining), possibly curtailing or eliminating the
bidder from fudhe bidding in the mock auction.
17. The mock auction bidding schedule for Friday, June 11, 2010, will be as follows:

Round I 10:00 a.m. - 11:00 a.m. ET


Round 2 12:30 p.m. - 1:30 p.m. ET
Round 3 3:00 p.m. - 3:45 p.m. ET
Round 4 5:00 p.ur. - 5:30 p.m. ET

B. Watchlists
18. The FCC Auction System sets up for each qualified bidder a default watchlist, called "All
Licenses," which contains every license selected on the bidder's short-form application. Qualified
bidders may create additional watchlists containhg licenses oftheir own choosing, and licenses may
appear in rnultle watchlists. Bidders may access the FCC Auction System and begin creating their
watchlists upon receipt oftheir SecurID@ tokens. Instructions for creating wtchlists will be provided in
the Integrated Spectrum Auction System (ISAS) Bidder's Guide. Please note that watchlists created in
the mock auction will not display in Auction 87.
C. Bidder Questions during the Mock Auction and Auction 87
19. FCC auction staff and technical support staffvr'ill be available during the auction. Only a
pelson who has been designated as an authorized bidder, the contct person, or the certifuing official on
the applicant's short-form application should call on behalf of a bidder. When calling, the person should
state that he or she s calling on behalf of a bidder with a time-sensitive auction question. To place bids
by phone or to ask questions during the auction, bidders should use the FCC Auction Bidder Line
telephone nulber sr.rpplied in the registration materials. Otherwise, bidders should refer to the contact
hformation provided in Section VII "Contact Infotnation" below.
D. Bidder Suggestions
20. The FCC Auction System includes a flinction for bidders to submit sggestions to the FCC,
but this is not an appropriate mechanism for asking time-sensitive questions that may need an immediate
response, such as questions about auction procedures or other issues. Those questions should be directed
to the Auction Bidder Line or to the appropriate telephone number provided n Section VII "Contact
Information" below.
IY. AUCTIONINFORMATION
A. AuctionAnnouncements
21. The Commission will post pertinent auction infomation as announcements in the
FCC Auction System. Bidders should routinely check for amouncements each time they enter the
FCC Auction System and should read this information carefully.
B. Bidding Schedule
22. Auction 87 bidding will begin on Tuesday, June 15, 2010, with two rounds and the schedule
will be as follows;
Bidding Round 10:00 a.m. - 12:00 p.rn. ET
Bidding Round 2:00 p.m. - 4:00 p.m. ET
23. The bidding schedule for wedesclay, June 16, 2010, and continuing until fuIther notice,'r'ill

Round 1 10:00 a.m. - 1l:00 a.m ET


Round 2 1:00 p.m. - 2:00 P.m. ET
Round 3 4:00 p.m. - 5:00 p.m. ET

24. The Bureau will set the pace ofthe auction based upon monitoring of the bidding and
assessment of the auction's plogress. All subsequent schedule changes will be made by announcement
via the FCC Auction System duing the course ofthe auction.
C. Bid Amounts
25. Each license in Auction 87 will have a minimum opening bid amount, as previously
announced.t In addition to the minirnum opening bid, Auction 87 will begin with eight additional bid
anounts (fo a total ofnine bid amounts. pr license.s The Bureau retains the discretion to change the
minimum acceptable bid amounts, the additional bid amounts, the cap (if any) on bid amounts, the
number ofaccphble bid amounts, and the parameters ofthe fomulas used to calculate bid amounts if it
determines thaircumstances so dictate. Further, the Bureau retails the discretion to do so on a license-
by-license basis.e
D. Round Results
26. Round results will be available approximately 30 - 45 minutes after the close of each roruld.
Auction 87 will be conducted using procedures that limit the disclosure of infonnation on bidder interests
and identities until after the close ofbidding.r0

27. Two types of reports will be available to bidders during the auction: (1) publicly available
information, and (i) bidder+pecifrc information available only to that bidder when logged in to the FCC
Auction System. re public information will be available on the FCC Auction System results page and
in dowrlodable files. When a bidder is logged in to the I'CC Auction System, it will have a selection of
.,My Bid Reports" available to it on the FCC Auction System's bidding page. Information in "My Bid
Reports', allws o ly the respective bidder to view all of its actions in the curent and previous rounds of
the auction. Sampls of the downloadable files are avaitable on the web page for Auction 87 at
http://wireless.fc.gov/auctions/87, via the "sarnple Results Files" link in the "General Information"
setio1 of the pagel Due to the large number of licenses in this auction, the XML Database Cumulative
files will not be available during the auction.
28. Detailed instructions for reviewing and downloading round results are provided in the
Integrated Spectrum Auction System (ISAS) Bidder's Guide. The bidder's guide is included with
qalifred bd'ders' registration materials and is available in electronic form through the "HELP" Iink in the
FCC Auction System.
Y. MAINTAININGAPPLICANTOBLIGATIONS
A. Prohibition of Certain Communications
29. We remind applicants that section 1.2105(c) of the Commission's rules prohibits applicants
for licenses in any ofthe iarne or overlapping geographic areas from communicating with each otller
about bids, bidding strategies, or settlements, which may include communications regarding
post-auction

Auction 87 procedtres public Notice atff 168-172. Attachment A ofthe Auction 87 Procedutes Publc Notice
1

scts folh the rninimum openng bid amounts for each license offered in Auction 87
8Id.arlntn,7-'19.

' Id. at11t'19.


to
td. atl11 135-144,198.
market struche, unless they have identified each other on thefu short-form applications as parties with
whichtheyhaveenteredintoagreementsundersectionl.2l05(a)(2)(viii).rrInAuctionST,the
prohibition on cefiain communications applies to any applicants that selected any ofthe same licenses or
iicenses in the same geographic area.r2
30. The prohibition on certain comunications is effective as ofthe short-form application filing
deadline, which for Auction 8? was March 16, 2010, t 6:00 p.m. ET, and extends until the post-auction
don payment deadine, which will be amounced in a public notice released shortly following close of
bidding.r3 The prohibition appties to all applicants regardless ofwhether such applicants become
qualified biddeis or actually bid.ra For frther information on the prohibition, applicants should refer to
lhe Aucton 87 Procedures Public Nolice.\s
B. MaintenanceofAnonymousBidding
31. We remind applicants that, under the anonl'rnous bidding procedures in effect for Auction 87'
the Commission is withholding from public release, until after the close ofthe auction, any information
that may indicate specfic applicants' interests in the auction - including, among other things, license
selectons, upfront payments, and eligibility information and the identities ofbidders making bids or
taking othe bidding-related actions- Accordingly, commrmication to other applicants or public disclosure
of suh non-public infonnation would appear to violate the Commission's aonymous bidding procedures
and section i.ztOs" ofthe Couunission's mles.16

. This prohibition would include communication of ally such non-public information by an


32
applicant to the p;blic, financial analysts, or the press, as well as any such communication by an applicant
t nother appliant for one or nore licenses covering geographic areas also covered by the applicant's
license seletions on its short-form application.rT Examples of commudcations that rnay raise concem,

rr47C.F.R. Rules -
$$ l.zt05(a)(2)(viii), 1.2105(cxl). Se /so Amendment ofPat 1 of the Commission's
Copetitive idding Procedutes, WT DocketNo.9?-82, Seve,th Report a d Ot der,FCC 0l -2'70' 16FCCRcd
.546 eOOl) (*pa;t I Seventh Report and Order"); Order on Reconsitleraton of he Third Report and Order, Fifth
Report and Order, and Foutth Furthet Notice o P1'oposed Rule Makng,FCC 90-274, l5 FCC Rcd 15,293,
1s,2e7-e8 ll'jl 7-8 (2000).

For a nore detailed discussion of consideations relatig to prohibited communications in the context ofAuction
r2

8'1, see Auctiott 87 Ptocedures PublicNotice afffilO'35. See /so "Wireless Telecommutications Bueau Claihes
Spectrum Auction Anti-Collusion Rules," Public Notice,ll FCC Rcd 9645 (1995)

" 47 c.n.n. l.2lo5(cxl).


ra
For example, the Comnission imposed a forfeiture in the amout of $100,000 for violation of section 1.2105(c),
even though the applicant never mado an upfrot payn'ent fo the auction and was not listed as a qualified bidder'
Se Nothast Comnunications of Wiscor\sin,LLC, Foreiturc Order,DA 04-3027 ,19 FCC Rcd 18,635
(2004)-
The Commissioll subsequently reduced the amount ofthe forfeiture to $75,000 on accout of the pafies' history of
compliacewithCommissionrules.,gstarWireless,LLCandNortheastCotnmunicationsofWisconsin,Inc.,
Ordr on Review,FCC 07-08, 22 FCC Rc d8943 (2007), teview denied, Star Wireless, LLC v FCC' 522 F '3d 469
(D.C. Cir. 2008) (section I.2105(c) applies fo applicants regardless ofwhother they are qualified to bid). The United
States Distict Cout fo thc Eastem District of Wisconsir reaently granted sllnmary judgment in favor ofthe United
States pursuant to an effort by the Depaflrent ofJustice to enforce the forfeiture. United States v. Northeast
communicatiors of wisconsin, LLC, Decuon and ordet, case No.0?-c-7J5 (June 25,2008). See also Lettet to
Robert Pettit, Esq., from Margaret W. Wiener, Chief, Auctions and Industry Analysis Div , DA 00-2904, 16 FCC
Rcd 10,080 (WT/Auc. Div. 2000) (dectining to exempt an applicant's cortrolling interest from coverage by the
rulc, evon though the applicant nevcr made an upfront payment for the auction ad was not listed as a qualified
bidder).
)s
Auctiotz 87 Procedttes Public Notice atffil 10-35.

'o Id. utnn s-144.


The Commission has long expresscd the concem that applicants should usc caution in thcir dealings with other
r?

pafies, such as members ofthe press, financial analysts, or othcrs who might become a conduit fot the
6
given the anon).mos bidding procedures in effect for Auction 87, include an applicant's statement tothe
to the press that it is or
fress about its irpfiont payment or bidding eligibility, and an applicant's statement
is not interested in bidding in the auction.

C. Disclosure Obligations nd Possible Sanctions


33. Section 1.2105(c)(6) provides that any applicant that makes or receives a communication that
appears to violte section 1.2105(c) must report such communication in writing to the Commission
imrnediately, and in no case later than frve business days after the comrnunication occus.t* The
Comnission has clarified that each applicant's obligation to report any such communication continues
beyond the five-day period after the communication is made, even if the report is not rnade withir the five
day period.re

34. In addition, section 1.65 of the Commission's rules requires an applicant to mahtain the
accuracy and completeness of iformation fumished in its pendng application and to notiff the .^
Comrnission of any substantial change that may be of decisional significance to that application.'" Thus,
section 1.65 requires an auction applicant to notiry the Commission of arry substantial change to the
information or efiifications included in its pending short-form application. Applicants are therefore
required by section 1.65 to teport to the Commission any communications ofbids or bidding strategies
tht result in a bidding arangernent, agreement, or understalding after the short-form filing application
deadline.2l
35. The Commission recently amended sections 1.65(a) and 1.2105(c) of its nrles to require
applicants in competitive bidding proceedings to fumish additional or conected infomration within five
days ofa significant occurrence, or to amend their short-form applications no nore than five days after
th applicant becomes aware of the need for amendment.22 The Cormission made this change to
facilite the auction process, by making the iaformation available promptly to all particpants and
enabling the Bureau to act expeditiously on those changes when such action is necessary."

commrnication ofnorr-public information relating to auctios, such as bids and biddir,9 sttafe9res. Compare
"Wireless Telecommunications Bureau Responds to Questions About the Local Multipoint Distribution Service
A\ctio, Publc Notice," DA 98-37,13 FCC Rcd 341, 347-8 (1998) ("Public statements aan give rise to collusion
concerns. This has occur.ed in the antitrust cotext, where cetain public statements can support other evidence
which tcnds to indicatc the existence ofa conspiracy.")
ts
4? C.F.R. $ 1.2105(cX6); se a lso Part I Seventh Report and Otder, l6 FCC Rcd at 17555 1l l7
re
See Service Rules fhe 698-'146,7 41-'t 62 and'7'7'l:792Mwz Bads, WT Docket No, 06-150, Revision of the
fot
Commission's Rules to Ensue Compatibility with Enhanced 9l I Emergency Calling Systems, CC Docket No. 94-
102, Section 68.4(a) ofthe Commission's Rules Goveming Hearing Aid-Compatible Telephones, WT Docket No.
0l-309, Biennial Regulatory Review Amendment of Parts 1,22,24,27, and90 to Streamline ad Harmonize
Various Rules Affecting Wireless Radio Services, WT Docket 03-264, Forme Nextel Commuticatiols, Inc. Upper
700 MHz Guard Band Licenses and Revisions to Part 27 of the commission's Rules, wT Docket No. 06-169,
Implementing a Nationwide, Broadband, Interoperable Public safety Network in the 700 MHz Band, Ps Docket No.
06-229, Development ofOpe@tioal, Technical and Spectrum Requirenents for Meeting Fedenl, State and Local
public Safefy Communications Requirements Through the Year 2010, WT Docket No. 96-86, Declaratory Ruling on
Reporting Requirement under Commission's Pat 1 Anti-Collusion Rule, WT DocketNo. 07-166, Second Reltort
and Order,FCC 07-132, 22 FCC Rcd 15,289, 15,395 ff
285-86 (2007)

'?o
47 c.F.R. $ 1.65.
21
See Part I Seeenth Report and Order,16FCCP.cd atl'7552r 12.
Procedual Amendments to commission Part I Competitive Bidding Rules, wT Docket No. l0-18, order, FCC
22

10-4, 25 FCC Rcd 521, 523 I 8 (2010) C?arl I Procedural Amendments Order")'
t' ld.
36. Parties reporting prohibited cornnunications must take care to ensu.re that any such reports do
not themselves give riie to a violation of section 1.2105(c). For example, a party's report ofa prohibited
conunication could violate the rule by communicating plohibited infomation to other applicants
through the use of Comrnission filing procedues that would allow such materials to be made available for
publi inspection. The Commission recently amended section 1.2105(c) to minimize the risk of
inadvertent dissemination by requiring pariies to file only a single report and to file that report with
Commission personnel expiessly char-gd with administring the Commission's auctions.2a Pur$ant to
the arended rule, any reports required by section 1.2105(c) must be filed consistent with the instructions
set forth in this Public Notice.z5 For Auction 87, such teports should be filed with the chiefofthe
Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, by the most expeditious
reans available. Specifically, any such reports should be submitted by e-mail at the following address:
auctionST@fcc.gov, or delivered to the follorving address: Margaret W. Wiener, Chiet Auctions and
Spectrum ccess Division, Wjreless Telecommunications Bureau, Federal Com-munications Cornmission,
445 12th Stueet, SW, Room 6423, Washington, DC 20554.
37. A party seekng to report such ptohibited communications should consider submitting its..
report with a rquest that the report or portions ofthe submission be withheld from public inspection."
Pnies should also include a cover sheet to avoid the inadvertent dissemination of infomation contained
in the rcport. Such parties are also encouraged to consult with the Auctions and Spectrum-Access
Division staff if they have any questions abut the procedures for submitting such repofs.2T The Aucton
87 Procedures Public Notice provides additional guidance on procedures for submitting application-
related information.zs
38. Applicants that are winning bidders will be required to disclose in their long-form
applications the specific ten.ns, conditions, and parties involved in all bidding consortia, joint ventures,
partnerships, or other agreements or aangenents entered into relating to the competitive bidding
p,ocess.'o Any applicant found to have violated section 1.2105(c) ofthe Commission's rules may be
subject to sanctions.rO In addjtion. we remind applicants that they are subject to the antitrust laws, which
are designed to prevent anti-colpetitive behavior n the markelace. If an applicant is found to have
violated the antitrust laws in connection with its participation in the competitive bidding process, it may
be subject to forfeiture of its upftont pa)ment, down paJment, or full bid amount, and it may be
prohibted from participating in fiture auctions.3r
D. Submission of Auction-Related Fiings
39. As noted above, applicants seeking to amend their short-form applications during the auction
must make modifications to their short-fomr applications electronically and submit a letter, briefly
smmarizing the changes, by e-mail to the attention ofMargaret wiener, chief, Auctions and spectrum

2a
Pafi I Procedural Anendments Order at 522 I 4 .

26
See 47C.F.R. $ 0.459 (procedures for requesting that materials or infomation submitted to the Commission be
withhed fom public inspection). lf an applicant requests confidcntial tratment of a document, the cover page of
the filing must poriently display that th applicant is seeking confidntial treatment for that documnt. For
example, a filing might include a cover page stamped with "Request for Confidential Treahnent Attached" or "Not
for Public lnspectiol." Any such request must cover all ofthe material to which the request applies. See47 C'F.R.
0.a59(a).
27
S Section Vll. "Contact Infonnation." below.
28
See Auction ST Procedures Public Notice at n12'1-33,95-102
2e
See 47 C.F.R. $ 1.2107(d).
r0,Se
47 C.F.R. $$ 1.2105(c), 1.2109(d).
1r
Se 47 C.F.R. S 1.2109(d).
the changes
Access Division, at the following address: auctionST@fcc.gov. The e-mal summarizing
must include a subject or caption refering to Auction 87 and the narne ofthe applicant

40. Parties wisling to submit tequests, complaints, or other infomation conceming Auction 87
should, in addtion to folloiing other proedures prscribect by the Commission's rules, send a copy
by
e-mail to the attentio' of Margaret Winer, Chief, Auctions and Spectrum Access Division, at the
following address: auctionST@fcc.gov. The Commission occasionally receives cornplaints regarding
the
certain bidders and requests to susp-end bidding during an auction. While the Commission esewes
right to take appopriaie action duiing an auction to preserveJhe integriry ofthe auction process, it is.
gJneray our piactce to address arry such allegations only after thewrnning bidders hve submitted their
iong-foim applcations, when there s greater opporhnity for investigation of such allegations, if
waanted. ihe Commission will not investigat any complaints or allegations that ai:e not accompanied
party
by full contact information - including name, address, ncl telephone number - for the complaining
or parties.
41. Finally, parties wishing to make suggestions conce[ring Auction 8? or future auctions should
present such ideas u.iog th" tugg"Jtion featurc i the FCC Auction Systern' (As mentioned above,
this
ieaLre is not an app.opiiut" -h*irm for posing time-sensitive questions that need an immediate
response.) commiision staff considers all suggestions, but rnay not always plovide an individualized
response.

E. Amendments to Short-Form Applications (FCC Form 175)


42'Applicantsmustmaintaintheaccuracyarrdcompletenessofinfonnationfumishedintheir
short-form applcations, including their attachments.rz Applicants should amend their shorl-form
or
applications ; fumish additionalr corected information within five days of a significant occurrence,
t'amend their short-form applications no more than five days after the applicant becomes awate ofthe
and suhnit a
need for amendment.33 Appicants must modifi their short-fonr, applications electronically
letter briefly sr.unmarizing re changes by -mail to the attention of Margaret Wiener, Chief, Arrctions and
ip""t u- """r. Oivisio-n, at the fllowlng address: auction8T@fcc.gov. The e-mail summarizing.the
changes must include a subject or caption referring to Auction 87 and the name of the.applicant.
The,
Bureu requests that parties folmat any attachments to e-mail as Adobe"' Acrobat" (pdf) or Microsoft"
Word documents. Aplicants must not submit application-specific material tkough the Commission's
Electronic CommeniFiting System 1"ECFS"). Questions about changes should be di-rected to the
Auctions and Spectrum Access Division at (202) 418-0660
43. As described in the Commission's rules, applicants may rnake only minor colrections to their
short-form applicatiors (e.g., deletion and addition of authorized bidders or chnge in contact
ioiol-utlon.'^o Major mod-ifications (e.g., license selection changes, newly-claimed or increased bidding
report any
credit, or canging control ofthe applicant) will not be accepted.rs Bidders must immediately
clearly stte the nahrre of the change
change affectin'g teir eligibility fo bidding credit. Bidders should
letter referenced above. In cases of
in an"ameoclmeit to ttreihort-fonn application and in the summary
iminished bidding credit eligibility, th Commission will make appropriate adjustments in the bidding
credit prior to the computation of any down and final paynent amounts due'
44. When amendig short-form applications, applicants must avoid any statements or disclosures
that rrray violare section 1.2105(c) ofthe omrnission's rul9s, partcularly in light ofthe limited
information disclosure proceduies in place for Auction 87.r" Applicants should avoid including any
r2
see 47 c.F.R. S 1.65.
u Parl I Prccedural Anendments Oer at 523 \18.
3a
See 4'7 c.F.R. $ 1.2105(b).
tt
ld.
36
See Auction 87 Procedures Publc Nolice atl742
information in their short-form applications that miglit convey information regarding license selections,
such as using applicant names that refer to licenses being offered, refening to certain licenses or markets
in describing bidding agreements, or including any information in attchments that may otherwise
disclose applicants' license selections. Therefore, a party seeking to subr.rit information that might reflect
non-public information, such as an applicant's license selections, upfront palnnent amount, or bidding
eligibility, should consider submitting any such information along with a request that the filing or
portions ofthe frling be withheld om public inspection until the end ofthe prohibition of certain
comrlrunications pursuant to section 1.2105(c).

F. Ex ParteRule
45. Applicanls should also be aware that the Comrnission has generally treated mutually
exclusive short-fonn applications as exempt proce-edings and, therefore, not subject to the ex parte
prohibitions that penain to resb'icted proceedings.r
G. Due Diligence
46. We remind potential bidders that they are solely responsible for investigating and evaluating
all technical and marketplace factors that rnay haye a bearing on the value of the licenses being offered in
Auction 87. The Commission makes no representations or warranties about the use ofthis spectrum for
pafticular sewices. We strongly encourage potential bidders to conduct thet own research prior to the
begiming ofbidding in Auction 87 in order to determine the existence ofpending proceedings, pleadings,
applicatiom, or authorizations that might affect their decisions regarding participation in the auction.
Each potential bidder is solely responsible for identif,ing associated risks and for investigating and
evaluating the degree to which such matters may affect the bidder's ability to bid on, otherwise acquire,
or make use of licenses available in Auction 87. In addition, potential bidders should perform technical
analyses sufficient lo assure themselves that, should they prevail in competitive bidding for a specific
license, they will be able to build and operate facilities that will comply fully with the Commission's
technical and legal requirements.
47. Participants should continue such research tluoughout the ar.rction. For further details
regarding due^diligence. qualified bidders should refer to I}'e Auction 87 Procedures Public Notice undet
Section I.C.4.'"

VI. POST-AUCTIONINF'ORMATION
A, Post-AuctionProcedures
48. Shortly after bidding has ended, the Cornmission will issue a public notice declaring the
auction closed, identiing the_-winning bidders, and establishing the deadlines for subrritting down
payrnents and final pa.ments.3e Winning bidders will have 10 business days following that public notice
to make down payments and file a long-fonn application (FCC Form 601) and an ownership disclosure
infbrmation report @CC Form 602).40 Winnhg bidders claiming eligibility to receive a bidding credit
will be subject to more extensive reporting requirements contained in section 1.2112(b) ofthe
Conrmission's rules.al ln addition, wining bidders with foreign ownership interes ;ill be required to
comply with 47 U.S.C. S 310(b) at the long-form application stage. Fudher instructions regarding these

37
See "Commission Announces that Mutually Exclusive 'Shof-Fonn' Applications (Form 175) to Participate in
Competitive Bidding Pocess ('Auctons') Are Treated as Exempt fot Ex Parte P[rposes," Public Notice,FCC 94-
283, 9 FCC Rcd 6760 (1994). Seealso4T C.F.R. $ 1.1202(dxl)Note 1.
38
See Auctiott 87 Procedures Public Noticenn3948.
3e
For rnore detail, se e Auction 87 Procedures Public Noce atffi 2OO-275.
40
See 4? C.F.R. g 1.2107.
a'
47 c.F.R. $ 1.2112(b).

l0
post-auction procedures are contained inthe Aucton 87 Procedures Public Notlce and
will be provided in
ihe public noiice annor.rncing the winnhg bids.az
B. Upfront PaYment Refunds
. Qualifred bidders are advised not to request refunds of any unused upftont p-ayment balances
49
until after thJBureau issues a public notice announcing the winning bidders in Auction 87'
V . CONTACT INFORI\,IATION
50. For further information conceming Auction 87, please contact:
General Auction 87 Information FCC Auctions Hotline
General Auction Questions (888) 225-5322, option two; or
(717) 338-2868

Auction 87 Process and Procedures Auctions and Spectrum Access DiYision


(71'.1) 338-2868
Roy Knowles (AnalYst)
Barbara Sibert (Project Manager)

Auction 87 Legal Information Auctions and Spectrum Access Division


Auction Rules, Policies, Regulations (202) 418-0660
Scott Mackoul (Attorney)

Licensing Inforrnation Mobility Division


Service Rules, Policies, Regulations (202) 418-0.620
Licensing Issues, Engineering Issues Michael ConnellY (Attom
Due Diligence, IncumbencY Issues Melvir Spann (Engineer)

Technical Support FCC Auctions Technicl Support Hotline


Eleconic Filing (877) 480-3201, option nine; ot (202) 414-1250
FCC Auction System (Hardware/Software (202) 4t4-t2ss (rrY)
Issues) Hours of service: 8:00 a.m' - 6:00 p.m. ET,
Monday through FridaY

Auction Payments Auctions Accounting Group


Instructions for Wiring Upfront Payments (202) 4t8-0s78
Gail Glasser

5l.Torequestmaterialsinaccessibleformats(Braille,largeprint,elechonicfiles,audioforrnat)
and Govemmental
for peopie with disabilities, send an e-mail to fcc5O4@fcc gov or call the Consumer
Affirs Bureau at (202) 418-0530 or (202) 418-0432 (TTY)'

-FCC-

e See ALtclion 87 Procedures Public Notice atfln 200-215 ' See also 47 C.F.R. SS 1.2107,
1.2109(a).

t1
BXHIBIT2
http://us.mg20 I .mail .yahoo.com/dc/l aunch?.parher=sbc&.pF I &.rand:6i.. .

at the same tme on FCC


ECFS n Doket 09-205
From: Waren Havens (vr'arren.havens@sbcglobal.net) 87 docket).1
To: Marlene.Dortch@fcc.gov ; auctionST@fcc.gov; scott.mackou@fcc.gov;
Date: Fri, i|'lay 28,2010 7:3 5: l9 PM
Cc: jsilke@silkecom.com; lester@twowayusa.com; jstobaugh@telesaurus.com; wanenhavens@mac.com;
Subject: Request for Correction DA 10-863 - expedited response requested

To: FCC Secretary

Attn: Margaret Wiener


Chef, Auctions and Spectrum Access Divsion (at the "aucton87" email listed for you in DA
10-863)

Cc: Scott Mackoul (at email of record)


Auction Rules, Policies, Regulations, of the Auctions and Spectrum Access Division

James Silke, President, Slke Communications (usin9 title and email on the its Form 175)

Lester Boihem, "Officer," Two Way Communications (using title and email on its Form 175)

RE:
N4oton for Correcton, Includng under Section 1.41--
Expedted Response Requested by End of Thursday, June 3, 2010.

Dear Ms, Wiener, Mr, Mackoul.x and other relevant FCC staff:

* (I cc'ng you due to your listing at the back of DA 10-863 as to legal matters.)

Initially, we apprecate the FCC'S work toward Auction 87, and its efforts under the Communicatjons Act
to serve the nation. We support to purposes of Congress in the Act, both via our nonprofit Skybridge
Spectrum Foundation and our commercal LLCS. I am the President of the three companies listed below
that are qualified bidders in Aucton 87 ("Pettioners").

-- 1--
To enable an aucton in accord with the Act, applicable FCC rules, and controlling court precedent,
Pettoners
pont out and request correcton of a serious error in DA 10-863, dated l,tay 27,2e10, footnote 2, This
footnote follows (u nderlin ing added):

2. Two applcants - Slke Communcations and Two-Way communicatons -


qualified as bidders
n Auction 87, but are not elgible for the biddng credt originally requested n
their respective
short-form applications. Specifically, Silke Communications amended its applicaton and
requested the 25 percent bddng credit instead of the 35 percent biddng credit. Two-Way
Communicatons originally requested the 25 percent bidding credt, but amended its applicaton to
withdraw its request for a bidding credit altogether. Therefore, these applcants are qualified, but
only with the bidding credit level as shown in Attachment A, In addtion, one qualified applicant
requested to change its name from "Teletouch Paging Lp" to "TTp Licenses, Inc,,, This name
change is reflected n Attachment A and within the Commssion's electronc bidding system
dataase, Finally, one qualified applicant - Dallas county Community College Dstrct - corrected
its FCC Regstraton Number ("FRN") associated wth its application. The correct FRN is
O0Ot673979, which s reflected in Attachment A,

The above noted amendments were made after the Form t75 deadline.
Petitioners request that above be corrected by replacng the above sentence that commences wth
"Therefore" with the followng, or language with the same material content and meaning:

l of 4 6/6/2010 7 t07 PM
ht://us.ng201.mail.yahoo con/dc/larnch? paher=sbc& g>FI& rand=6i'
Pinl

credit
Therefore, these applicants are disqualfied due to a change in bdder size (qualif-ed bidding
level) which is an impermissible maior amendment as described ln Section 1.1205(b)(2), and also
since the certifications as to idder size in the orignal applicatlons are thus false.

provdes (underlining
The error in footnote 2 is shown in the following. FCC rule section 1.2105(b)(2)
added):

(2) The Commssion will provide bidders a limited opportunity to cure defects specfied herein
and to resubmit a corrected
iexcept for failure to sig; the application and to make certifications)
pplication. During the resubmission period for curing defects, a short-form application may be
amended or modified to cure defects identified by the commission or to make minor amendments
or modifications. After the resubmssion period has ended, a short-form appllcation may be
or correct mnor errors in the application. Maior
amended or modifed to make minor changes
amendments cannot be made to a short-form applcation after the initial fling deadline. Major
in ownership of the applicant that would constitute an assignment
un,endm"ntr include changes
or transfer of control, cha;oes in an applicant's size which would affect eligibiltv fgr desonated
entitv rovsions, anO cnanges in tne ticense service areas identified on the short-form application
on the applicant nteds to bid. Minor amendments include, but are not lmited to, the
"rn.f-r of typographical errors and other mnor defects not identfed as major. An aDlcation
correction
wll be considerd1o be newlv filed if t is amended bv a maior amendment and mav not be
resubmitted after aDlicable fl lnq deadlines.

In decidng to implement the above-cited rule, the commission explained that the very changes
see Wf
described in footnote 2 quoted above are disqualifyng impermissible major amendments.
Docket No. 97-82, ET Docket No. 94-32; FC 97-413. Thrd Report and Order (2322 Federal Register /
vol. 63, No. r0 / hursday, January 15, 1998), whch provdes (underlining and text n brackets
added):
concludes
47. Aftef careful consideration of the comments addressing the issue, the commission
that a defintion of major and minor amendments simlar to that provided n the commisson's
pcs rules, 47 CFR 24.822, s appropriate. After the short-form filing deadline, applicnts will be
permitted to make minor amendments to their short-form applications both prior to and during
the auction. However, aoplcants wll not be Dermtted to make maior amendment9 or
modificatonstotheiralcationsaftertheshort-formfilingMajoramendmentsWill
nclude, but will not be limited to, changes in lcense areas designated on the short-form
applicaion, changes n ownershii of th applicant which would constitute a change in control,
and
of the
the addition of other applicants to any idding consortia. consistent wth the weght
comments addressing the ssue, maior amenments will also include anv change i an
ap'licant's
provisions. examole, if
size which would affect an aoolica-niG eliqibilitv for desiqnated entitv For
merges wth
Co-p"nyn, ur. apptca nihi qualfied fr specal provisions as a small busness,
com.panyeduringthecourseofanaucton,andif,asaresultofthismerger,themeroed
companv would not qualifv as a small busness, the amendment reflecting the change
in
ownershp or company ould be considered a major amendment. [Going DoWN in "bdder sze"
--biddino'credit le;el --after the aplicaton is submitted after the deadlinel Otherwise, the new
entity cuta receive small business bidding credits and lnstallment payments when it does not
qualiiy for them. As is the case in the Commisson's PCS rules, however, applcants wll be
jermiiteO to amend ther short-form applcations to reflect the formaton of bidding consortia or
lhanges in ownership that do not resuit in a change in control of the applcant, provided that the
parties forming consortia or entering into ownership agreements have not applied.for lcenses in
but will
any of the same geographic license reas. In contrast, minor amendments wll include,
of typographcal errors and other minor defects, and any
not be limted to, the correction
amendment not dentfied as maior.

Accordngly, Petitioners request that FCC make the correction noted above'
--2--

6/6/2010 7:07 PM
2of4
Print ht://rs.mg20l.mail.yahoo.com/dc/larmch?.partner=sbc&.gr1&.rand=6i..

If the FCC does not make the correction proposed above and notify me of that by end end of Thursday,
June 3, 2010, then to defend the the relevant FCC law and integrity of Government licensing and
auctions, Pettoners will authorze their ltigaton counsel, prepared n advance, to seek an injuncton
to stay the auction, a final decsion n accord with the above, attorney fees and other relief related to
the matters described above.

-3--
Pettioners know the FCC is aware of the above clear meaning of Section 1.2105(bX2) snce they (and
aftiliates) presented ths repeatedly wth regard to Auction 61. (I do not here make a "presentation,"
as meant in the FCC'S ex parte rules. regarding any Aucton 61 matter, but state the just-noted
knowledge here to be clear on this for the noted potential court case. The background wll be presented
in court, f needed.)

--4--
In addition, the FCC mposed against my companies (and apparently others) who qualified for ths
auction in compliance with the rules. a draconian penalty: an effective 1/3 reduction in biddng credits
due to a slighly tardy past payment obligation of a de minimus amount to the FCC. Whle t severely
f,urt Petitioners'ability to compete as Congress intended in establishing license auctions, my companes
timely dsclosed our past tardy payment and paid that severe penalty in order to qualify for this
auction. Even though my companies fully qualified for the 35olo biddng discount, this severe penalty
effectively wipes out the beneft by the reduction in bidding credits. (I don't mention the dollar amount
here since the FCC has decided to not disclose the upfront payments of applicants, but t can be an
issue in court.) I am not at this time seeking relef as to that severe rule and penalty: as I said. I
accepted it in this case, I am seeking however, that the FCC also apply its other, more clearly far
rules-- including the one I cte above, to the compettors in ths supposed fair. transparent competition
u nder law.

Thus, apart from the need for the FCC to enforce ts major auction rules, we have this additional
equtable basis for asking the FCC to do so in ths situation. If the FCC does not fairly and objectively
apply its rules n a case like this, it undercuts the integrty of the auction and lcensing process,

Respectfu lly,

Warren Havens

PresidenL
Slvbridge Spectn Fourdation
vzG LLc
Itelligent Transporiation & Monitoring Wireless LLC

President, otter FCC license entities:


Environmentel LLC
Verde Systems LLC
Telesaurus Holdings GB LLC

Berkeley Califomia
!r'ww.scribd.con/warrer havens
wrvw.atliswireless.cot
www.tetra-us.rs
510 841 2226,2220 - otrtces
51,0 848 7797 - djlect
510 'l 40 3412 - fax

3 of 4 6/6/2010 7 tO1 PM
EXHIBIT 3
Approved by OMB
Federal Communications Commission Special Use 3060-0600
Washington, D. C. 20554 FCC Use
Application to Participate itr atr FCC Auction
Only
(Read Instructions Before Completing)

l. Applicant 8. Applicant Ctassification: Individual Ll Joint venture

!Partnership l-ltrust coporation ! Consortium

Inc Govt. Entity I Association

9. Applicant Status: 10. Bidding Credit


2. Mail Address (No P.O. Boxes)
Eligibiliry

5. ZIP Code
! Rural telephone compaY _% Biddine Credit
3. City 4. State Pecentage
! Minority o*'ned business

fl wo.un o*n"d business fl Small Business

6. Auction Number 7. Taxpayer Identification No.


! Nonco-mer"ialEducational ! Very Srnall Business

l-l None ofthe above l-l New Entrant


I I . Entreprener
12. Liaenses or construction permits for which you want to bid lfbidding for Wireless licenses' use
Eligibility (if appropiate
Schedule A. Ifbidding for Broadcast construction permits, use Schedule B'
Tofl ssets and
goss revetues do
13. n Clect ttere ifexhibits ae atached lndicate numbe ofsupplemental exhibits attached: -- not exceed ihe
maxirnum dolla
14. Person(s) authorized to make or withdraw a bid (Identiry up to tlrce )

(b) (c)
(")

Certification: I ceiry the folloving:

(l) qualified pusuant to 308(b) ofthe communications Act and the


that the applicant is legally, technically, financially and otherwise
provisions contained in Section 310 of the Communications
Commission's Rules and is in cornplince with thl foreign ownership
Act.
ale no agfeements or understandings othel than those
(2) that the applicant is the eal pafty in interest in this application and that there
which provide that someone other than the applicant shall have an
specified in this appligation (see Instructions for certification),

that, if upon commission inspection, this application is shown to be defective, the application mav be
' ' ::Tr'i:i,"aware
G) penalties may also apply'
dismissedwithout further consideratin, and certain fees forfeited. Other
applicant has not enteed into and will not entel into any explicit or
(4) except as explicitly povided in the Comission's Rules, that the
implicitagreementsoundelstndingsofanykindwithpartiesnotidentifiedinthisapplicationegadingtheamounttobebid,
parties will or \dill not bid.
biding sategies or the particular license on which the applicant or other
(5) that the appicant, o any party to this application, is not subject to a Jenial of federal benets puuant to Section 5301 of the
Anti-Drug Abuse Act of 1988.
special provisions set forth in the
tol in"l ir a-bidding credit eligibility is claimed in block 10, the_.applicant is eligible for any
set forth ill the Commission's Rules' to veliry such status'
Commission's Rules applicabe to this auction and aonsents to audits, as
remain in compliance with any service specific qualifications
(7) that the applicant is and will, during the pendenry of is application(s),
'' applicablo the licenses on which t-he applicant intends to bid including, but
not limited to, financial qualifications'
and that it is not delinquent on any non-tax debt owed to
(g) that the applicant is not in detult on any puyt"nt fo, cot-ission licenses
any federal agencY.

Ideclale'underpenaltiesofperjury,thatlamanauthorizedrepresentatiYeoftheabove-Damedapplicantforthelicense(s)
atrd the foregoing certifrcation nd all metters and
atrd/or construction permits specine above, that I hve read the itrstructions
exhibits' are true and correct'
things stated in this application, its schedules and attachments, includitrg
16. Contct Person
Telphoe No
15. Name of Person Cerrying

o. Boxes) ctv Stale ZtP Code


Conrct Pcrson Address (No P I

Title of Person Certifying Date


E-mailAddress FAX No.

18, Section 1001), and/or


\/villful false statements moe on lnls rcrm are punrrcorc uv rrre orru'vr Fcc 175
47, Section 3f2(axf)), and/or forfetJre (U S Code Ttle 47'
revocation of any staton lcense o, construcfin permit (U.S. ode, Ttle odob 2ooo

Section 503).
Federal Communicatrons Commission
Approved by OMB
Washinglon, D. C. 20554 Application to Participate in an FCC Auction 3060-0600
Schedule .4. (FCC Folm I75)
(Ihis schedule is to be used when pplying to bid forwireless
license{/markets,)

Applicant Auction No. IFCC Account No.

Markets and Frequency Blocks/Channels for which you want to bid.


tlrket No.
Frequency Block/ChDnel No.
\LL TI Bnter Frequency Blocvchannel Nunbe(s) or Lette(s) or Check All at I -t
(a)

(b)

(d)

(e)

(D

(s)

(h)

(D

(k)

(t)

(m)

(n)

The Communications Act of 1934, as amended, authorized the FCC to collct the personal infomation rquestd on this form. We will use the information provided
to determine whether approving this application is in lhe public interest. Ifwe believ there may be a violation or potetial violation of any sttut, or FCC rule,
regulation or order, i/our pplication may be referred to the Fedel, state or local agency responsible for investigatmg, posecuting, enforcing or implementing the
statute, rule, regulation or order. In certain cases, the lnfomation on your application may be disclosed to the Department of Justice or a court or adjudicative body
when (a) the FCC; (b) any employee of the FCC; or (c) the United States Govemmen! is a party to the proceeding before the body or has an interest in the
proceeding. Ifyou owe a delinquent debt to the federl govemment, the TIN and other information provided may also be disclosed to tho Department of Trcasury
Financial Management Servics, other fedeml agencies and,/or your empoyerto offset your salary,IRS tax refund or other paymenb to collec,that debt. Th FCC
may also provide this lnformation to thse agencies throgh the matching of computer records vhen authorized. With the exception of the TIN, any infomation
provided on Lhis form will be avatlable for public inspeclion.

Public reporiing burden for this information (including FCC Fofm 175 and this Schedule) is estlmated to average 1.5 hours per response, including the time for
reviewing instructions, searching existing data needed, gathenng and maintaining the data neded, and completing and reviewing lhe collection. You are not
required to respond to a collection of information sponsored by the Fderal Govemment, unless it displays a cunently valid OMB control number The control
Dumber for this collection is 300-0600. Send comments regarding this burden estimte or any other aspect ofthis collection ofinformation, including suggestions
for reducig the burden, to the Federal Commnictions Commission, Paperwork Reduction Project (3060-0600), Prformance Evaluation and Records
Management, Washington, D. C- 20554. DO NOT SEND COMPLETED APPLICATION FORMS TO THIS ADDRESS.
THE FOR-EGOING NOTICE IS REQUIRED BY THE PRTVACY ACT OF 1974,P.L.93-579,DECEMBER 31, 197s,5 U.S.C. SECTION 552a(ex3)
ND THE PAPER\ryORK REDUCTION ACT OF 1995, P.L. 104-13, 44 U,S.C, SECTION 350?.
FCC 175 (Schdule )
October 2000
Fderal Communicatrons Commission
Approved by OMB
Washington, D. C. 20554 Application to Prticipate in an FCC Auction 3060-0600
Schedule B (FCC Form 175)
(Ilris schedule is to be sd when applying to bid for broadcast
construcf ion permits/facilities.)

Applicant Auction No. lTaxpayer ldenrification No.

Broadcast facilities for whicb you watrt to bid.

Ch3nnel/ Community ofLicense:


Service File No. (if applicble)
Mrior Freqercy
Cty Stt

(")

(b)

(c)

(d)

(e)

G)

(h)

(D

(')

(k)

(m)

(n)

The Communicatons Act of 1934, as amended, authorized the FCC to collect the personal information requested on lhis form. \Ie will us the information provided
to determine whether approving thrs application rs rn the public interest. Ifwe believe there may be a vrolation or potential violation ofary statute, orFCC rule,
regulation or order, your application may be refned to lhe Fedeml, stale or local agency responsible for investigating, prosecuting, enforcing or implemeting the
statute, ule, regulation or order. In certain cases, the information on your applicatio may be disclosed to the Dpartment ofJusfice or a coun or adjudicative body
when (a) the FCC; (b) any employee of the FCC; or (c) the United States Government, is a party to the proceeding before the body or has a interest in the
proceeding. Ifyou owe a delinquent debt to the federal govemmenl the TIN and othr information proyided may also be disclosed to the Department of Teasury
Financial Management Sevices, olher federal agencies and/or your employer to offset your salary, IRS lx refund or other payments to collect that dbt- The FCC
may also provide this information to these agencies through the matching ofcomputer records when authorized. With the exception ofthe TIN, any information
provided on lhis form will be available forpublic inspection.

Public reporting burden for this information (including FCC Fom l?5 and this Schedul) is estimated to average 1.5 hours per response, including the time for
revrewing instructions, searching existrng data needed, gathering and maintaining the data needed, and completig and reviewing the collction. You arc not
rquired to respond to a collectior of information sponsoed by the Federal Govemment, unless it displays a curntly vlid OMB control nuJnber. The conlrol
number for this collection is 3060-0600. Send conents regarding this burden estimate or any other aspect of this collection of information, including suggestions
for rducing the burdn, to the Federal Communications Commission, Paperwork Reduction Project (3060-0600), Performance Evaluation and Records
Management, Washjngton, D. C. 20554. DO NOT SEND COMPLETED APPLICATION FORMS TO THIS DDRESS
THE FOREGOINGNOTICE IS REQUIRED BY THE PRIVACY ACT OF 1974,P.L.93-579,DECEMBER 31, 1975,5U.S.C. SECTION 552a(ex3)
AND THE PA?ERIVORK REDUCTION ACT OF 1995, P,L, I04-13, 44 U.S.C, SECTION 3507,
FCC 175 (Schedule B)
Oclober2000
ltstructions

Item t. pplictrt Nme: Enter the legal nam of the person or ntity applying to Item 13. Exhibits. If exhibits re tttached to the pplication, check the bor
participate in an auction. If other than n indlvidual, msert the exact name ofthe provided snd indict the number of ethibits. List in an exhibit the name,
entity as it appean on the legal documen( establishing lh ntity' such as the itizenship and address ofall palers, ifthe applicat is a partnership; ofa responsible
Aft icles of Incorportion. oflicer or direclor, if the aPplicant is a corportion; of the trustee, if the applicant is a
fisq or if the applicant is none of the foregoing, list the name, address and citizenshiP
INOTE: Applicnts who hve entcred into n rrangemen(s) of ny kitrd
rcltig to the license(s) nd/or constructio permi(s) specified in this ofa pnncipal or other responsible peon. See47C.F.R$ I2105(a) In addition,list
pplicrtiotr must provide additotrl informtion. Se Exhibit irstructions in n exhibit the specific o$ership information s set forth in 47 C F R $ 1 21 12'
below.l Also list in a exibit all Pnies wilh whom the applicant has ntred inl'o an
agreement(s), of ny kind, relatig to the facilitis being auctioned including where

Item 2. Applicrt Mtiling Addrcss: Enter th street ddress (no Post Ofice Boxes) applicable, such agreement(s) relating !o the post-auction market sfucnlfe See 47
suitble for mil or Private parcel delivery, for the applicant C.f.n- t.ztoslu. For broadcast applicants, the ti'collusion provisions of 47

c.F.R Part 1 are modified puu?rt to 4? C.F.R S 73 5002(d).

Item3. City: Enter the city nam for the pplicat mailing address
Itm 14. uthorized Bdders: Entr the name(s) of the person(s) you wish to
Itcm 4. Stt: Enter th twolettr stte abbreviation dsicnaie as an authorized representtive(s) oily aulhorizod represenhtives will be
(3)
allowd to make or withdraw bids at an auclron You may list a mximum of thre
Item 5, ZIP Code: Enter the Zip Cod for the applicant address authored reprsentatives.

Itcm 6. Auctior Numberl Entr the ppropriate auction number suPplied by the Item 15. Certificaion: Entor the name of the indYidal authorized to submit the

Cotunission in the Public Nolice. application, his,/her title, date of submission.

Item ?. Taxpyer Idenncrlion Number: Enter your nine-digit Ta'\payr Item 16. Confct person/rtldrcss: Enlr the name of a peon familiar wth the
Identification Number (TIN). The Ta-\pyer Identifiction Number is your Employer application (contact person) and the address, phone rumber, fax llumber (inclmg
Identification Number (EI or you Social Secuity Number (SsN), as rePorted lo the area code), and e-mail address of lhe contact prsoll All written and verbal
lntemal Revene Service (IRS). communications and registration information will be directed to lhe applicat's
conhct peon at the addresvphone number specified o the FCC Form 175'
Item 8. Applictrt Clssiffction: Place an [X] in the approPriate box precding the
NOTEI The Commissions Public Notic olmcng the auctior ofthe facilities for
type of legal entiry applying. Lirnited Liability ComPanies should check the "LLC"
which you are interested in bidding and related documents, contain information
box. Unincorporated Assoclatons should check the "ssociation" bor Governmenfl
conectly You should also consult the specific nles
essential to complting this form
Entities should check the "Gov't Entity" box All prtrehips should chck the
goveming the service in which you are applying Forms whlch are completed
"Partnehip" box and indicate in an exhlbil whelher they are a gneral or limited
partnership. incorectly may be dismissed without an opportu ty for resubmissio

in the appropriate box or boxes preceding the Schedule - Wirlss I'cilitis: Enter lhe code for the marke(s) on which you wt
Itcm 9. Applicnt Sttusl Plac an [E Market No- The codes will be provided by the
type of entity. The definition of "noncommercial educational" entily applies to to bid in the column under
Commission in a Publc Notice. Use a sepalte line for each difierent markel lfyou
broadcas! applicants only ad is containd in 47 USC. 397(6) and 47 CFR
73.503(a) (for radio) ad 4? C.F.R $ ?3.621(a) (for television) The definitrons for want to be eljgible to bid on licenss in all markets, you should place an [E in lhe box
marked "ALL." After each maket, list the lette(s) or numbe( for ttle frequency
"rural telephone compay", "minoriry o*rcd business"' and "woman owned business"
block(s) or channel(s) on lvhich you intend to bid These codes will be provided by
are contained in 47 C.F.R $ 1.2110. Applicant status information concemjng rural
the Conmission in a Public Notice. For exnple, ifyou want to bid on hvo ftequncy
telephone companies, minority-owed brinesss ad women-owned businesses is
blocks in market (a) and one block in market (b) to be eligible you would enter th
collected for statistical Purposes only.
cods for the two desired frequency block(s) in markel (a) in colums I and 2 on line
a wrreless auction, place an [Xl in (a) and leave the remaining colums on that line bla* On line (b) you would entcr in
Item 10. Bidding Crdt f,ligibilty: Ifbidding in
the box preceding the Small Busircss or Very Smll Business dsignated ntlty type, if
colurr 1 the code for the frequency block you wal in market (b) and leave lhe
remainng colurnns on the line blak. Ifyou want to be eligibleto bid on all ftequncy
appropria- This informatlon will be used for detrmi ng the pplicarls eligiblity
blocks in all available markets, yo] should place an [X] in the box maked "AIL"
fi special provisions available for wireless dsigated entities For definitions of the
types of d;ignated entities, see the Commission s Rules at 47 C F R Paft I , Subpan Q
Schedule B - Brod(st tr'cilities: Enter th name of the service for the farility on
and the spcific Commission Rules goveming the wireless service for which yor ar
which you intend to bid using lhe fouowing cod desigato: AM Rdio - AM; FM
applying. If bidding m a broadcast auctio4 place an [Xl in the box precedig lhe New
if appropriate Th information will be used for Radro - FM; Full Power Tlevision - PST; FM Trslalor - FMT; Tv Trslator and
Entrat designated entity type,
determining the applicanfs eligibiliry for the New Enant bidding credit available for
Low Power Television SST. Use a separte line f each ditrerent facility. lndicat
designated enlities. See 47 C.F.R. $$ 73.5007 & 73 5008 411 dsignated entities whether the facility for which you want to bd is a ew faciliry or a "mjor
modification" to ar existing facility, as defined in 47 CFR $ 73.3571(aX1) (AM
must specify which percent bidding credit applies Applicants ineligible for a bidding
Radio), 73.3572(axl ) (Full Pover Television, Low Power Telvision and Television
credit shold leave the question blank. In addiflon, aPPlicats claiming eligibility for
Transiators), $ ?3.3573(aX1) (FM Rdio), and $ 74.1233(axl) (FM Traslato) If
the Small Business or Very Small Business bidding credit' must set for\ in an
you intend !o bid on an AM Radio facility, enter the Frequency of that facility;
exhibi! the applicands gross revenues, and ils affilites' gfoss revenues, in accordanc
wth lhe Commissions Rules goveming the auctionable service. Applicants claiming ;therwise enter the Charnel number Enter the Community of License (botl City and
eligibility for the New Entrnt bidding credi! must list, in an exhibit the applicands State) of *e facility for which you inlend to bid Enter the File Number of the
pertinent broadcst application (te, FcC Form 301 for AM' FM and llevision
oth;r media of mass commnications in accordance wth 47 c F.R $$735007&
73.5008. ;donq FCC Form 346 for LPTV and television translato, or FCC Form 349 for FM
Tmnslators) you have fild for the facility on which you intend to bi4 if applicable
Item ll. Entreprcrctr Eligibility lf bidding in a wireless auction' Place an [X] in
the box preceding the Enkeprenur Eligibilily, if appropriate. This will signi lat the
applicant is qualified to bid in a entrepreneul block auction For th rules concemig
elrgibility, see 47 c.F.R.24.?09.

October2000
Item 12. Fcilitie! for which you wnt to bid lf bidding for wlrless licenses, llse
Schedule A. If bidding for broadcast constuction permils, se Schedule B In
addition, see the specific instructions for Schedules A ad B
EXHIBIT 4
rc PUBLIC NOTICE
Federal Communicatons Commssion
News Meda Informaton 202 / 4'18.0500
445 12rh St., S.W. lnternet: http://w,rw.fcc.gov
Washngton, D.C. 20554 TTY: l-888-835-5322

DA 10406
March 10,2010

APPLICATIONS ARE DUE MARCII 16, 2()IO, FOR TIIE UPCOMING AUCTION OF LOWER
AND UPPER PAGING BAIDS LICENSES (AUCTION 87)

AU Docket No. 09-205

The Wireless Telecommurications Bureau ("Bureau ') reminds parties interested in parlicipating
in the upcoming auction of9,603 licenses for lower and upper paging bands spectnrm ("Auction 87') that
their auction applications must be submitted p.rior to 6:00 p.m. Eastem Time (ET) on March 16,2010.1
To complete n auction application, known as a "short-fonn application" (FCC Form 175), an applicant
nlust provide basic infomation, including disclosure ofownership and bidding arrangements, license
selection, and revenue infomation (for those applicants seeking a bidding credit).
Failure to submit a short-form application prior to 6:00 p.rn. ET on March 16, 2010, would bar
participation in Auction 87, which is scheduled to commence on May 25, 2010. Given the large number
of licenses to be offered in Auction 87, completing a short-form application for this auction may take
moe time than for previous auctions. Therefore, the Bureau encourages potential applicants to begin
completing tlreir short-form applications well before the March 16,2010, deadline. The Bureau also
encourages applicants to pay particular attention to the license selection on their shorl-fomr applications.'7
Late applications will not be accepted, and applicants will not be able to change their license selections
after the short-form application filing deadline.3

If applicants have technical questions or need assistance with completing and submitting their
short-form application - including questions on license selection - they should call the FCC Auctions
Technical Support Hotline t (877) 480-3201(option nine) or (202) 4l4-I250,Monday through Friday
from 8:00 a.m. to 6:00 p.m. ET. For legal questions, applicants should contact Scott Mackoul at (202)
418-0660.
- FCC -

I
.iee "Auction of Lowe| and Upper Paging Bands Liaeses Scheduled for May 25, 2010; Notice and Filing
Requiremnts, Minimum Opening Bids, Upfront Paynents, and Other Procedures fo Auction 87," AU Dockot No.
09-205, Publc Notice, DA l0-18 (el. Ia.22,2010) ("Aucton 87 Procedures Publc Notice").
2
Applicants may rse pre-defined filters to narrow the list oflicenses that they wish to select and save. See Aucton
87 Procedures Publc Nolce af C-3 and C-4. Those apptcants wishing to select alt 9,603 licenses can use the
"Service Code" or "Fequency Band" filtcrs to expedite selecting all licenses. After submitting their short-fom
applications, applicants should confirm their license selections. Applicants will be able to print their short-form
applications, and they will have the option to print their license selections as well.
3
Auction 87 Procedtes P blic Notce atllI64-65, 106.
EXHIBIT 5
Schwaninger & Associates, rnc. Auorneys at Law
Robert lL Sahwbger, J.
6715 Little River Turnpike, Suite 204, Anrandale, Virginia 22003
Inte me t Ad r e s s - tsch',aninger@sa-la''yers,net r Lictrsd b The District of
telephone - (7O3) 2560637 ColuEbla
" Not Lceed i te St1e of
acsimile - (703) 256-3578 \dtr

Apt\l26,2010

To: FCC Auction Division

Re: Silke Communications, Auction 87, Application File No. 0004155350


Request For Change In Eligibilitv Credit

We represent the interests of Silke Communications in its participation in Auction 87. Our
client originally filled in the information that was contaitred wirhin the application and intended
to save same as a draft, however, Silke submitted its efforts to the Auction Division. The pro
se effort by the client caused a mistake to be made, i.e. the failure to provide the information
and revenue derived by affiliated entities. Silke did not understnd what constituted an affdiate
and the necessity to include that informatior, which also affects the aggregate evenue of the
applicant. Therefore, Silke Communications requested the highest bidding credit available for
entities with aggregate revenue of less than $3,000,000.

We have modified the application on behalf of Silke to include the affiliate information and the
gross revenues of all affiliates, which caused the gross rovenues of the applicant to rise above
$3,000,000 per year. Therefore, Silke is seeking to amend the bidding credit, lowering it from
35To To 25% . Accordingly, Silke is seeking less of a bidding acconrnodation than its original
request, which request was made in innocent eror.

Silke deems that the public interest is served by allowing action applica.nts to correct their
data and the associated bidding credit, provided the bidding credit is reduced following such
corection. To deny the revised bidding credit would be a disincentive to applicants to address
any reporting errors, despite the fact ttrat correction might ultimately disadvantage the
applicant with regards to bidding credit.

For the above reasons and for good cause shown, Silk Commudcations respectfully requests
that it be assigned a25Vo bidding credit for its participation in Auction 87.
TWO-WY COMMUNICATIONS, INC.
1704 JUSTIN RO,A,I)
METATRTE, LA.70001
(s04) s8s-9200
(504) 585-9211 FAX

Concerning Short Form 175 - Auction 87 - bidding credit

Two Way Communications does not seek a bidding credit.

This has occurred due to the increased Disclosable lnterest Holders


gross revenue.

I am unable to change on form.

Please accept filing with no bidding credit.

Sincerely,
Frank W. Ruth
EXHIBIT 6
,{ pUBLlc NoTlcE
Federal Communications Commission News Media lnfomation 202 /418-0500

445 r2th Sr., S.W. htemet:b$!/U44bqggy


Washington, D.C. 20554 TTY: 1.888-835-5322

DA 10-588
April 13' 2010

UCTION OF LOWER AN'D T]PPER PAGING BANDS LICENSES


R.ESCTIEDULED FOR JUNE 15, 2O1O

STATUS OF SHORT-FORM APPLICATIONS TO PARTICIPATE IN AUCTION 87

AU Docket No, 09-205

L The Wireless Telecommunications Bureau ("Bureau") announces a revised schedule for


the upcorning auction of 9,603 licenses for lower and upper paging bands spechnl. This auction, which
is deiignated as Auction 87, was initially scheduled to begin on Tuesday, May 25,2010, but because of
necessary scheduling changes, the auction will begin on Tuesday, June 15, 2010.' This Public Notice also
announces a new deadline fol submitting an upfton1 pa)'nent and a new date for the urock auction'

2. The Bureau received 89 short-form applications (FCC Forms 175) to padicipate in


Auction 87. This Public Notice nnounces the status ofthose applications and provides other imporlant
infonnation and reminders relating to the auction.

I, RESCHEDULED AUCTION START DATE AND PRE-AUCTION DATES

A. Auction Date

3. Under the revised auction schedule, bidding in Auction 87 will begin on Tuesday, June
15, 2010. The initial schedule ofbidding rounds will be announced by public notice at least one week
before the start of the auction.
B. Pre-Auction Dates and Deadlines

4. In light of the revr' auction start date, the Bureau evises the schedule for other pre-
auction events and deadlines. Upfront palments will be due by 6:00 p.m. Eastem Time (ET) on Friday,
April 30,2010. Also, the mock auction will be held on Friday, June 11, 2010 With the exception of
these and any other changes set forth in this Public Notice, the procedures, tenr.rs and conditions
previously ainoun ced in-the Aucton 87 Procedures Public Notice wlll apply in Auction 87.'?

I
See "Auction ofLower ad Upper Paging Bands Licenscs Scheduled for May 25, 2010; Notice and Filing
Requirements, Minimum opening Bids, upftont Payments, and other Procedures fo Auction 87," AU Docket No
09-205, Pubtic Notce, DA 10-18 (rel. Jan .22,2010) ("Aucton 87 Procedutes Publc Noice").
2
See, generally, id.
Accordingly, the updated schedule will be as follows:
Upfront Payments (via wire transfer). . April 30,2010; 6:00p.m. ET
Mock Auction...... . June 11,2010
Auction Begins..... .Jme 15, 2010

IL SHORT-FORM APPLICATIONS AND UPFRONT PAYMENTS

A, Sttus of Short-Form Applications

6.The short-form applications for Auction 87 have been reviewed for completeness and
compliance with the Comr ssion's rules, and have been classified into the categories listed below.

Comp1ete............. ...34 pplications

Incolnplete.......,... ...55 applications

7. Designation ofan application as complete indicates that the applicant has provided the
certifications and basic information conceming its qualifrcations as required by the Commission's
competitive bidding rules for participation in the auction. Under the Commission's two-phased auction
application process, a winning bidder must submit a long-form application after the close ofthe auction to
demonstrate its qualifrcatjons to hold a Cormission license and, ifa bidding credit is requested, its
eligibility for the bidding credit requested.r Thus, determination that a short-fonn application is
complete and complis with the Commission's competitive bidding rules and policies is not determinative
ofan applicant's qualifications to hold a license or of entitlenent to a bidding credit.a
8. Complete Applications. Attachment A to this Public Notice lists the short-form
applications for Auction 87 that are complete. These applicants will becorne qualified bidders in Auction
87 upon receipt ofthe required upfront payment by 6:00 p.m. ET on Frday, April 30, 2010.5

3
See4'1 C.F.R. S$ 1.210? 1.2109; see a/so Amendment of Part I of the Commission's Rules - Competitive
Bidding Plocedures, PP Docket No. 93-253, Second Report and Order,FCC 94-61,9 FCCPrcd2348,23'76-7'1
ff 163-168 (1994). In the evcnt that an applicant is found unqualified to be a Commission licensee or ineligible for
claimed designated entity betefits, it will be liable for any obligations incured as a result ofits patiaipation in the
a\ctio. See generally 47 C.F .R- $ 1.2109.
a
Three applicants - Skybridge Spectrum Foundatioll ("Skybridge"), V2G, LLC ("V2G"), and Intetligetrt
Tnnsportation & Monitoring Wireless, LLC ("ITMW") - request that the Commission find that Skybridge is not
affiliated with V2G and ITMW. Specfically, Skybridge equsts that the rcvenues ofthe entities controlled by its
president not be attributed to Skybridge because of Skybridge's status as a nonpofit corporation. V2G and ITMW
similarly request that Skybridge's revenues not bc attributed to both V2G and ITMW because of Sbridge 's
rloprofit sthrs. Sbridge assets drat a waive is not rcquied to make this finding, but nonetheless requests a
waive ifthe Comnission deen'm itnecessary. Each ofthese applicants discloses, in its short-fonn applicatior, the
evenues ofthe other hryo applicants ad related entities as affiliates. Because, based on their disclosures and their
cefifications, the aggegate average gross revenues for each ofthe applicants is below the $3,000,000 cap fol
applicants seeking a 35 percent bidding credit, we hnd these applicants' requests moot. Moreovr, roquests
conceming application qualifications and eligibility for designated entity status are generally considered after the
auction duing the long-form application process.
5
See 47 C.F.R. g 1.2106.
Applicants also must rnaintain the accuracy oftheir short-fonn applications as required by sections 1.65
and 1.2105 ofthe Commission's rules.6
9. Incomplete Applications. Attachnent B to this Public Notice lists the short-fonn
applications for Auction 87 found to be incomplete or otherwise deficient. These applicants will receive
overnight correspondence indicathg what information is required to make their applications complete.
Tlese pplicantJmay becorre qualified bidders only if they timely take the following actions: (1) make
the requiied upfront pa)anents by 6:00 p.m. ET on Friday, Aprt 30, 2010; and (2) resubmit their
applicdons, having coected the deficiencies indicated, prior to 6:00 p.m. ET on Friday' April 30'
2-010.? Applicants also must maintain the ccuracy of their short-form applications as required by
sections 1.65 and 1.2105 ofthe Commission's rules.s
10. The frling window for resubmitting Auction 87 short-form applications is now open'
coffecred applicalions must be filed prior to 6:00 p.m. ET on Friday, April 30, 2010. This will be the
only opportunity to cure application defects. Late resubmissions will not be accepted. If an application is
incomiete or otherwise deficient after the resubmission deadline has passed, the applicant will not be
permitted lo participate in bidding.
B. Upfront PaYments

11. Upfon1 paynents nd accompanying FCC Remittance Advice forms @CC Forn 159,
Revised 2/03) for Auction 87 are due in the proper account at U.S. Bank, St. Louis, Missouri, by 6:00
p.m, ET on Friday, April 30, 2010. In order to meet the Commission's upfront payment deadline, an
pplicant,s payment must be credited to the Commission's account by the deadline. Payments nust be
made by rvire transfer only in accordance with the instructions provided in the Auction 87
r0
Procedires Pulic Narrc.e No otler pa).'rnent method is acceptable for this auction Applicants are
reminded to provide their FCC Registration Number ("FRN") on the FCC Form 159 and to submit the
same FRN with all futwe payments for Auction 87. At least one houl before placing the order for the
wife hansfer (but on the sar.e business day), applicants must fax a completed FCC Form 159 to U.S.
BaDk at (314) 4184232.
12. Each applicant is responsible for obtaining confimation ftom its financial institution that
the Conrmission has timly received its upfront payment and deposited it in the proper account.' The '

u4zC.F.R.S$1.65, 1.2105. The Commission ecently amendcd sectios 1.65(a) and 1.2105(c) of its rules to
require applicants in copetitive bidding procee<lings to fumish additioal or corrected ifonnaton within five days
of significant occunence, or to amend their short-form applications no more than five days after the applicant
becoms awae of the need for arnendment. See Procedural Amendmerts to Commission Part 1 Competitive
Bidding Rules, WT Docket No. 10-18, Order,FCC l0-4, 25 FCC Rcd 521,523l8 (2010) ("Patt I Procedural
Amenclments orcler,'). see atso 4'1 c.F.R. $ L2105(c)(6) (any applicant that makes or rcceives a prohibited
cotrurunication must epot such communication in writing to the Commission no later than five business days aftet
the communication occurs).
1
See 4'7 C.F.R. S$ 1.2105(b), 1.2106.

I +?
c.F.R. gg 1.65, l.2t05.

See Auctiot 87 Procedures Public Notice atlfii 112-16. A wirc transfer is a hansaction that you initiate though
e

your bank, It authorizes your bank to wie funds from your account to the Commission's aacount

The Commission will not accept checks, crcdit cards, or automated clearing house ("ACH") palmnts.
r0

See Letter fiom Margaret W, Wiener, Chief, Auctions and Industry ,Analysis Div., Wireless Telecommunications
r1

Bureau, to Patrick shannon, Esq., counsel for Lynch 3G commurrications corp., DA 03-1944, 18 FCC Rcd 1 1,552
(WTB/Auc. Div. 2003) (finding rbat an applicant had failed to timely submit its upfront payment and theeforc did
Bureau reminds applicants that they should discuss arrangernents (including transfer times and bank
closing scedulesj ith their financial institution several days before naking the wire transfer so as to
avoid irntimely upfront payments. Applicants should allow sufficient time for the transfe to be initiated
and complete before the deadline. Detailed information regarding upfront pal.ments, including_
additionl requirements for "former defaulters," can be fottd tn lhe Auction 87 Procedures Public Notice
under Section II.G. ad Section III.D.j'
13.Applicants that have filed applications deemed to be incornplete or otherwise deficient, as
noted in Attachment B to this Public Notice, must subnit timely and sufficient upfiont payments before
the Comrnission will review their resubmitted applications. Ifno upfront paynent is made, or the
application is incomplete or otherwise deficient following its resubmission, the applicant will not be
eligible to bid.
C. Short-Form Application Changes and Resubmission

14. Applicants whose applications for Auction 8? have been identified as incomplete must
address defects heir applications during the rcsubmission window (which is now open and closes at
in
6:00p.m. ET on Friday, April 30,2010).rr The Bureau is sending a letter to each applicant whose
applcation lns been demd incornplete identiing tre deficiencies found during the staffs initial
rvierv of the application. These deficiency letters are being sent via overnight delivery to the contact
person ard contact address listed on each incomplete application.
15. During this resubmission window, all applicants may make other minor changes as
described below in more detail. We remind applicants that sections 1.65 ad f .2105 of the Commission's
rules require al applicant to maintain the accuracy and cornpleteness of information fumished in its
pending short-forrn application.'a Applicants should amend their short-fom applications to flimish
dditioiul ot information within five days ofa significant occurrence, or no more than five days
"ott"cted
after the applicant becomes a\/are ofthe need for amendment.5 To the extent that changes rnay be made
directly in ihe electronic Form 175 at the time ofthe amendmert, applicants must modi|' their short-form
applictions electronically.r6 Applicants seeking to report changes outside ofthose tirne periods in which
sirrt-fono applications are accessible electronically must submit a letter briefly summarizing the changes
by e-mail to he attention of Margaret Wiener, Chief Auctions and Spechrm Access Division, at the
fllowing address: auctionST@fc.sov. Questions about changes should be directed to the Auctions aDd
Spectrum Access Divison at (202) 418-0660.

not qualify when te paynent was received by the Commission's bank before the applicable deadlie, but not
.."dited to the Commission,s account until afte the deadline due to a enor of the applicant's bank).
t2
See Auction 87 Procedutes Public Notice atfllt 89-93,112-1'24.

" 47 c.r.n. l.2to5OX2).

'o 47 c.F.R. Sg 1.65, 1.2105.


t'Id,
r6
During the resubmission phase, applicants rvill have electronic acccss to update the foltowing application fields:
jurisdicti-on of fonnation/country ofiitizenship, applicant address, responsible party infonnation, resposible paty
ddess, contact infon.nation, contact address, authorized bidder information, bidding option (telephonic or
electronic), agreement infomation, and ownership information. During all phascs of the application pfocess,
applicants iraie electronic access to make certain adninistrative changes including updates to; applicanl adlress,
rsponsible party address, contact iformation, contact addess, and bidding option (telephonic o electronic)
16.The Form 175 will not pemit an applicant to make certin modifications 10 its
application (e.g., changes to applicant's name, legal classification, license selections or certifiing official,
or changes in its bidding credit).'7 Administrative and rninor changes can be made, including, for
example, deletion and addition of authorized bidders (to a maximum of tkee), revision of addresses and
telephone numbers ofthe applicants and their contact persons, and changes to responsible pafi
While
changes canbe made to ownrship and agreement information,rE we remind applicants that any
application changes must comply with the Commission's rules, which prohibit, among other things,
changes in ownership that would constitute an assignment or hansfer ofcontrol, as well as changes in
owne-rship or disclore of agreements that would onstirte violations ofsection 1.2105(c).re If any
applicatin is changed to effect a major amendment, the applicant will be ineligible to bid in the auction.'?o
ilI, OTHER IMPORTANT AUCTION 87 IMORM-ATION

17 . Qualified Bidders. Approximately tkee weeks after the upftont payment deadline,
following Commission review ofresubmitted short-form applications, and the conelation ofpa).rnents
and applications, a public notice listing all applicants qualified to bid in Auction 87 will be released. The
same public notice will also include bidding schedules for both the mock auction and the first day of
bidding.
18. Due Dilignce. Potential bidders are solely responsible for investigating and evaluating
all techical and marketplace factors that may have a bearing on the value ofthe licenses being offered in
Auction 87. The Commission makes no representations or warranties about the use ofthis spectrum fot
particular seices. We shongly encourage potential bidders to conduct thet own research prior to d1e
beginning ofbidding in order to determine the existence ofpending proceedings, pleadings, applications,
or authorizations that might affect their decisions regarding participation in the auction. Participants
should continue such research throughout the auction. In addition, poteftial bidders should perform
technical analyses sufficient to assue themselves that, should they prevail in competitive bidding for a
specific license, they will be able to build and operate facilities that will comply fully with the
Commission's teclnical and legal requiremenls. For fudher details regarding due diligence, please refer
to the Auclion 87 Procedures Public Nollce under Section I.C.4.2r
19. Prohibition of Certain Communications. We remind applicants that section 1.2105(c)
ofthe Commission's rules prohibits applicants for licenses in any ofthe same or overlapping geographic
areas fiom communicating with each other about bids, bidding strategies, or settlements, which may
include communications regarding the post-auction market structure, unless they have identified each
other on their shof-form applications as parties with which they have entered into agreements under
section 1.2105(ax2xviii)." The prohibition on certain communications applies to applicants that selected

'? 47C.F.R. 1.2105O). The Commission's electronic Form 175 is designed to prevent jnadvetent major
changes by applicants. Therefore, applicants are not permitted to make changes to the follo\r,ing data fields at this
time: applicant name, legal classifiation, certifier, bidding credit, and license selection.
r8
Fo moe information on making administrative clanges to an existing application, see "Updating Existing
Applications." See Auction 87 Procedures Publc Nolice at ff 95-l 02 ard Attacllment C at C-12

re
,See 47 C.F.R. $ 1.2105(b) - (c).

20
see 4? c.F.R. {i 1.2105(bX2).

2t
See Auclion 87 Procedures Public Notice at'tl!l 39-48.

" 47 C.F.R. $$ 1.2105(a)(2Xviii), 1.2105(cxl). See a/so Amendment ofPart I ofthe Commission's Rules
Cornpetitive Bidding Procedures, WT Docket No. 97-82, Seveh Report and Ordet',FCC 01-2'10,l6 FCC Rcd
17,546 (2001); Order on Reconsderation ofthe Third Repott and Order, Fifth Reporl arul Order, and Fourth
Further Notce of Proposed Rule Making,FCC 00-2'74,15 FCC Rcd 15,293, 15,297-98 ff 7-8 (2000).
licenses in the same or overlapping rnarkets regardless of the fiequency. Therefore, n Auction 87, for
example, the rule would prohibit an applicant bidding for a 35 MHz EA license and another applicant
bidding ior a 929 MHz MEA ljcense that cover any ofthe same geographic area frora communicating
absent a disclosed agreernent."

20. The prohibition on cerlain communications is effective as ofthe short-form application


filing deadline, whic for Auction 87 was March 16,2010, at 6:00 p.m. ET, and extends until the post-
action down payment deadline, which will be announced in a public notice released shortly following
close ofbidding3, The prohibition applies to all applicants regardless ofwhether such applicants
become qualifi-ed biddes, submit an upfront payment, or actually bid'?5
21 . We also emphasize that, for purposes of this prohibition, an "applicanf includes all
controllrg interests ofthe entity submitting a short-form application to participate in the auction,
includingl officers and diectos ofthat entity and 11 holders ofpartnership and other ownership
interests and any stock interest anounting to l0 percent or morc ofthe entity, oI outstanding stock, or
outstanding votlng stock ofthe entity sub;i$ing a short-form applicatior.r.26 Thus, for example, a
violation o1section 1.2105(c) of the Cornmission's rules could occu when a individual seves as an
officer and/or director for two or mote competing applicants that have not disclosed an agreement on both
short-form applications.2T Therefore, applicants should continue to take precautionary steps to"prevent
prohibited cmunications between any ofthe entities or persons covered by the prohibition.'8

Fo a more detailed discussion ofsection 1.2105(c) ofthe Comrrission's rules in the context ofAuction 87, see
23

Auction 87 Procedures Puhtic Nolce at1l 10-33. See also"Vlireless Telecommuniations Bueau Clarihes
Spectrum Auction Anti-Collusion Rles," Publc Notce,l I FCC Rcd 9645 (1995)'

'o 47 c.F.R. g 1.2105(cxl).

For exanple, the Commission imposcd a fodeihre in the amount of $100,000 fo violation of scction 1.2105(c),
25

even thoug the applicant never mae arr upfront payment for tbe auction and was not listed as a qualified biddet.
See Nothast Comnunicatios of Wisconin,LfC, Forpiture Order,DA 04-3O27,19 FCC Rcd
18,635 (2004).
The Comnission subsequently rcdued the anlount ofthe forfeiture to $75,000 on account ofthe parties' history of
Inc.,
compliance with Commission ules. ,see star Wireless, LLC and Northeast Communications ofWisconsin,
Ord)r on Review,FCC 07-08, 22 !'CC Rc d 8943 (200'1), review denied, Star llireless, LLC v. FCC, 522F.3d 469
(D.C. Ci. 2008) (Section 1.2105(c) applies to applicants rcgardless ofwhethe they ac qualified to bid). Th" - .
judgrnent in favor ofe
nited States District Courl for the Eaitem District of Wisconsin recently granted summary
United Statcs pursuant to an effort by the Deparhnent ofJustice to enfoce the fofeitue. United States v Nortleast
Conrmunicatins ofWisconsi., LLC, Decision and Order, Case No. O7-C-715 (June 25,2008). See dlsoLelTet to
Robert Petrit, Esq., from Margarer w. wiener, chief, Auctions and Industry Analysis Div., DA 00-2904, 16 FCC
Rcd 10,0S0 (wTitAuc. Div.1000) (declining to exempt an applicart's cotrolling interest ftom covemge by
the
made upfront payment for the auction and was not listed as a qualified
rule, even thugh thc applicat never an
biddcr).
26
4't c.F.R. g t.2los(cXrXi).
2?
See Lorus Comnunications Corporation , Order, DA O8-1364, 23 FCC Rcd 9107 (WTB 2008); Letter
to Colby M
May from Barbara A. ltueisman and Margaret w. wiener, DA 05-2445, 20 FCC Rcd 14,648 (MB/Video Div. &
WfB/Auc. Div. 2005) (finding apparent violation of4? C.F.R. g 1.2105(c) where applicants with mutual1y
exclusivc applications repo.t" sh.ing .ame individual as an offlcer and dhector and reported no agreemnt)
2s
SeeApplication ofNevada Wireless fo a License to Provide 800 MHz Specialized Mobile Radio Service in the
Fanningn, NM-CO Economic Area (EA-155) Frequency Band A, Memorandwn opinion and orde\DA98-7137,
l3 FCcRcd 1 1,9?3, tl,g,77 n 11 (wTB 199g). The Bueau cutions, however, thar the mere existence of
precauLionary measures will not outweigh specihc evidence ofplohibited comunications, nor will it pteclude the
initiation ofan investigation when vr'arantd Id. at 11,97'7-'181113.
22. Ifparties had agreed in principle on all material terms ofa bidding agreement(s), those
parties must have been identified on the shorlform application under section 1.2105(c), even ifthe
agreement had not been reduced to writing. Ifparties had not agleed in pfinciple by the sho-fonll _

aiplication hling deadline on March 16, 2010, the applicant shold nt have included the names ofthose
piti". on itr upplication, and must not have continued negotiations.2e

23. Anonymous Bidding We remind applicants that' r.rnder the anonymous bidding
procedures in effect foi Auction 87, te Commission is witbholding from public release, until after the
close of the auction, any information that may indicate specific appticants' interests in the auction -
ilcluding, among oth"ithittgs, license selections, upfront payments and eligibility information - and the
identitiei ofbidders makinglids or king other bidding-related actions. Accordingly, communication to
other applicants or public disclosure of such non-public information rnay violate the Commission's
30
anonynus bidding procedures and seciion 1.2105(c) ofthe Commission's rules

24. This prohibition would include communication ofany such non-public information by an
applicant to the publii, financial anasts, or the press, as well as any such comrmmication by an applicant
to inother appliant for one oI more licenses covering geographic areas also covered by the applicant's
license seleitons on its short-form application.3r Examples of communications raising concem, given the
anonymous bidcling procedures in effct for Auction 8?, would include an applicant's statement to the
press about its uplont payrnent or bidding eligibility, and an applicant's statement to the press that it is or
is not interested in bidding in the auction.

25.Because anonymous bidding procedures are in place for Auction 87, applicants' licese
selections will not be disclose publicly until afier the auction closes. Therefore, the Bureau is sending
each applicant a letter identifuing those applicants that have applied for licenses in any of the same or
overlapping geographic areas as those selecred by Lhe applicant "
26. Disclosure obligations and Possible sanctions. sections 1.65 and 1.2105(c) ofthe
Commission's rules require auction applicants to maintain the accuracy and completeness of information
fumished in its pending application an to provide additional or coffected information within flve days of
a significant ocurrenc, i amend their short-form applications no more than five days aftel the applicant
becmes aware ofthe need for alrendment.33

27 .
Pafies reporthg conmunications prusuant to sections 1.65 or 1.2105(c)(6) must take
care to ensure that any such repofis ofprohibited commtlnications do not themselves give rise to a
violation ofsection l:2105(c). For example, a plty's lport of a prohibited communication could violate

Se Wieless Telecommunications Bureau Clarified Specttun Auction Anti-CollusionPtuls, Public Notice,


2e

DA,95-2244,11 FCC Rcd 9645 (WTB 1995).


30
See Auction 87 Procedures Publc Nolice at[n135-144'

The Commission has long expressed the concem that applicatts also should use caution in their dealings with
31

othr partics, such as -embe.s fthe press, financial analysts, or others who might become a conduit for the
communication ofnon-public information relating to auctions, sch as bids and biddig strategies. cl"r ireless
Telecomlnunications Bureau Responds to Questions About the Local Multipoint Distribution Service Auction,
Public Notice,,, DA98-37, 13 FCC Rcd 341, 3a7-8 (1998) ('Public statemets can give rise to collusio concms
This has occuned in the antitmst context, where certain public statements can support other evidence tends
"vhich
to indicate thc existence ofa conspiracy.").
32
See ucton 87 Procedures Public Notice Ltl141-
tt 4? C.F.R. uction 87 Procedures Public Notice atlll29-33.
$S 1.65, 1.2105(c). See also
the rule by cornmuDicating prohibited information to other applicants through the use of Comission
filing procedures tht would allovr' such matedals to be made available for public inspection.
28. The Commission recently amended section 1.2105(c) to minimize the sk of inadvertent
dissemination of information by requiring parties to file only a single reporl and to frle that report with
Conrmission personnel expressly charged with administering the Commission's auctions.3a Pursunt to
the amended rule, any reports required by section 1.2105(c) must be filed consistent with the instructions
set fortlr in the lac tion 87 Procedures Public Notice.ts For Auction 87, such reports should be filed with
the Chiefofthe Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, by the
most expeditious means available. Specifically, any such reports should be submitted by e-mail at the
following address: auctionST@fcc.qov, or delivered to the following address: Margaret W. Wiener,
Chief, Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, Federal
Communications Commission,445 12h Street, SW, Roorn 6423, Washington, DC 20554. Parties
submitting such a report should include a cover sheet to avoid the inadvertent dissemination of
inlormalion contained in the repod.
29.
A party seeking to report such prohibited communications should consider submtting its
report with a request that the report or poions of the submission be withheld frorn public inspection.r6
Such parties are also encouraged to consult with the Auctions and Spectrum Access Division staffif they
have any questions about the procedures for submitting such reports.3t The Auction 87 Procedures Public
Nolrce provides additional guidance on procedures for submitting application-related information.rs
30.
Applicants that are winning bidders will be required to disclose in their long-fonn
applications the specific terms, conditions, and parties involved in all bidding consortia, joint ventures,
partnerships, or other agreernents or arrangernents entered into relating to the competitive bidding
process.tn Any applicant found to have violated section 1.2105(c) ofthe Comrission's rules may be
s bject to sanctions.ao In addition, we remind applicants that they are subject to the antitrust la"vs, \r'hich
ar e designed to prevent anti-competitive behavior in the marketplace. If an applicant is found to have
violated the antitrust lws in connection with its participation in the competitive bidding process, it may
be subject to forfeiture of its upfront payrnent, down pa).rnent, or fulI bid amount, and may be prohibited
ftom participating ir future auctions.ar

3a
Part I Procedural Amendments Order,25 FCC Rcd at 522 f 4.

1s
Auction 87 Procetlure,t Public Nolice atn31.
3
.9 4? C.F.R. $ 0.459 (procedures fo requesting tlat matcrials o infolmation submitted to the Comrnission be
withheld fror public inspection). If an applicatrt requests confidential treatmelt of a document, the cover page of
the filing must pominently display that the applicant is seeking coufidential trcatment for that docnent. For
example, a filing might include a cover page stamped with "Reqest for Confidertial TreafIent Attched" or "Not
for Public lnspection." Ay such rquest n'ust cover all ofthe material to which the request applies- Se 47
C.'.R. $ 0.459(a).
3?
See Scction IV. "Contact lnformation" below.
38
See Auclon 87 Procedures Public Notice arff195'102.
1e
See 4':' C.F.R. $ 1.2107(d).
a0,9ee
47 C.F.R. $$ 1.2105(c), 1.2107(d),and 1.2109(d).
ar
t c.p.n. {i r.zlo9().
31. Ex PrteRte' Applicants should also be aware that the Commission has generally
treated mutually exclusive applications as exempt proceedings and, therefore , nof snbje to the ex parte
prohibitions that pertain to restricted proceedings.az
32. Mock Auction. All applicants found to be qualified bidders will be eligible to paficipate
in a mock auction on Friday, June 11, 2010. The Bureau encourages all qualified bidders to ke
advntage of this opportunity to become familiar with the ICC'S Integated Spectrum Alction SJStem
(.,ISAS,;or ..FCC ucdon System"). ln the public notice announcing the qualified bidders, the Bureau
iill announce the bidding sChedule for the mock auction. The mock auction will be conducted over the
Intemet, and telephonic bidding will be available as well.
33. Electronic Bidiling. Applicants are reminded that qualified bidders are eligible to bid
either eleconically or telephonically. Applicants should speciry their bidding preference on the FCC
Form 175, if they have not already done so.
34. Bidders can access the FCC Auction System over the Internet. The following software,
at a minimum, is required to use the FCC lntegrated Spectrum Auction System:

. Web Browser, either of the following is recommended:

. Microsoft@ Intemet Explorer 7.0. Your browser must have either Microsoft VM or Java
Plug-In Version 1.6 instl1ed
. Mo;illa@ Firefox@ 3.5, with Sun Microsystems' Java Plug-In Version 1 6'

To obtain Java Plug-In Version 1.6, point your browsel at


http://iava.sun.cos/javase/downloads/index.isp#ire and click the Download button for the Java
SE Runtime Environment (JRE) option.

. PDF Viewer: Adobe Acrobat Reader 5.0 or higher (available at http://www adobe com)

. Minimum Screen Resolution: 1024 x 768

35. Currently, the Apple@ Mac OS@ is not supported

36. post-Auction Procetlures, Shortly after bidding has ended, the Commission will issue a
public notice declaring the auction closecl, identiff4g the wir:ning bidders, and establishing the deadlines
ior submitting dow pyments and final payments.ar Winning bidders will be subject to the more
extensive reprting rquirements contained in the Cormission's Part I ownership disclosure rules and
will be required to submit a cor.npleted long-fom pplication (FCC Form 601) and ownership disclosure
infonnatio report (ICC Form 602).14 Further filing instructions will be provided to auction wiffers at
the close of the auction.

a2
Se
,'Commissio Announces that Mutually Exctusive 'Short-Form' Applications (Form 175) to Participate in
Cornpetitive Bidding Process ('Auctions') AIe Treated as Exempt for Ex Parte P\poses," Public Notice,FCC 94
283, 9 FCC Rcd 6760 (1994). See also 47 C F.R $ 1 1202(dX1) Note 1'

For more detail, see Auclion 87 Procedurcs Public Notce atffi200-275.


a3

4 See 47 C.F.R. S5 1.2107, 1.2112(b)(2).


IV. CONTACTINFORMATION
3l. For specihc questions about an applicant's incomplete status, the applicant should contact
the staffreviewer identified in the correspondence sent to the applicant by ovemight mai1.
38. For fuither infomation conceming Auction 87, contct:

General Auction 87 Information FCC Auctions Hotline


General Auction Questions (888) 225-5322, option two; or
(7r't) 338-2868

Auction 87 Process and Procedures Auctions and Spectrum Access Division


(717)338-2868
Roy Knowles (Analyst)
Barbara Sibert (Project Manager)

Auction 87 Legal Informtion Auctions and Spectrum Access Division


Auction Rules, Policies, Regulations (202) 418-0660
Scott Mackoul (Attorney)

Licensing Information Mobilify Division


Service Rules, Policies, Regulations (202) 418-0620
Licensing Issues, Engineering Issues Michael Connelly (Attomey)
Due Diligence, Incumbency Issues Melvin Spann (Engineer)

Technical Support FCC Auctions Technical Support Hotline


Electronic Filing (877) 480-3201, option nine; or Q02) 414-1250
FCC Auction System (Iardware/Software (202) 414-r2ss (rrY)
Issues) Hours of service: 8:00 a.m. - 6:00 p.m. ET,
Monday throug Friday

Auction Pyments Auctions Accounting GrouP


Insfuctions for Wiring Upftont Pa)'ments (202) 41'8-0578
Gail Glasser

39. To request materials in accessibe formats @raille, large print, elechonic files, audio
format) for people with disabilities, sed an e-mail to &q![@&948Y or call the Consumer and
Governmental Affairs Bureau at (202) 418-0530 or (202) 418-0432 (TT.

10
CERTIFICATE OF SERVICE

I am employed in the City of Washington, District of Columbia' I am over the

age of l8 and am not a party to the within action; my business address is c/o Nossaman

LLP, 1666 K StreetNW,'Washington DC 20006.

On June 8, 2010, I served the foregoing EMERGENCY MOTION IINDER

CIRCUIT RULB 27-3 FOR STAY OF AGENCY ACTION UNDER FRAP 18, OR" IN

TFIE ALTERNATIVE, PETITION FOR WRIT OF MANDAMUS on parties to the

within action as follows:

Via Hand Delivery and Federal Express (Overnight Delivery)

Austin Schlick, General Counsel


Daniel M. Armstrong, Associate General Counsel
Office of General Counsel
Federal Communications Commission
445 lzth Street S.Sy'.
Washington, DC20554

United States Department of Justice


Civil Division, Appellate Staff
950 Pennsylvania Avenue NW
Washington, DC 20530

Via Federal Express

Marlene Dortch, Secretary


Offrce of the Secretary
Federal Communications Commission
9300 East Hampton Drive
Capital Heights, i|l4d. 207 43

28
Lester L. Boihem
Two Way Communications, Inc.
1704 Justin Road
Metairie, LA 70001

Frank W Ruth
Two Way Communications, Inc.
2819 East Simcoe Street
Lafayette, LA 70501

James D. Silke
Silke Communications, Inc.
680 Tyler Street
Eugene, Oregon97402

Robert Schwaninger, Esq.


20\
6715 Little River Tumpike, Suite \.-----..-
Annandale, Ya.22003 \ \-. \
Attorney for Silke Communications, Inc. \ -.-..- \
<.-):_____..-\

29