On Tuesday, July 20, 2021, the Office of Economics and Analytics and the Wireless Telecommunications Bureau (“the Bureaus”) released a Public Notice (DA 21-859) providing additional guidance regarding the prohibition of certain communications during Auction 110. The Public Notice supplements the guidance provided in the Auction 110 Procedures Public Notice. As a reminder, the Commission’s rules prohibit all applicants “from cooperating or collaborating with respect to, communicating with, or disclosing, to each other or any nationwide provider that is not an applicant, or, if the applicant is a nationwide provider, any non-nationwide provider that is not an applicant, in any manner the substance of their own, or each other’s, or any other applicants’ bids or bidding strategies (including post-auction market structure), or disclosing or negotiating settlement agreements” beginning after the deadline for filing Auction 110 applications until after the down payment deadline.
The Public Notice provides the following additional guidance:
- Who is an applicant? Applicants include the officers and directors of the applicant, all controlling interests in the applicant, and all holders of interests amounting to 10 percent or more of the entity. An “applicant” at the application deadline remains an “applicant” regardless of whether the relevant application is ever deemed complete, or an upfront payment is submitted that qualifies the applicant, and/or no bid is submitted on behalf of the applicant.
- What communications are prohibited?
- Bids or bidding strategies (including post-auction market structure relating to the licenses being auctioned.
- Details of the Auction 110 bid including: specific geographic areas selected, specific bid amounts, and/or whether or not the party is placing bids.
- What communications are not prohibited?
- Disclosure that a party has or has not applied to participate in Auction 110.
- Broad industry discussions regarding setting technical standards for the spectrum band for which licenses will be auctioned.
- Third Party Communications. Applicants are permitted to communicate bids or bidding strategies to third parties, including consultants, counsel, or lenders. However, if the third party discloses the communication with other covered parties, then the applicant will be deemed as violating the prohibited communications rule. The Public Notice encourages applicants to protect against communications with third parties from becoming a prohibited communication to other covered parties, but warns that instituting protective measures does not absolve applicants from compliance with the prohibited communications rule.
- Communications during Coordination Requirements. As part of Auction 110, some applicants must comply with cooperative sharing and coordination requirements, by which the applicant must coordinate efforts with the National Telecommunications and Information Administration (“NTIA”) and the Department of Defense (“DOD”). The Public Notice treats NTIA and DOD as third parties. Thus, communications with these parties are permitted, but would violate the communications rule if NTIA or DOD transmitted the communications to other covered parties. Similarly, communications with NTIA and/or DOD regarding coordination requirements applicable to all licenses would be treated as analogous to technical standards for the band, and thus would not be prohibited.
As a reminder, all applicants that make or receive communications that violate the prohibited communications rule must report the communication in writing to the Commission immediately, and in no case no later than five business days after communications occurs.
The short-form application filing deadline for Auction 110 was July 21, 2021 at 6:00 P.M. The prohibited communications rule is now in effect.
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