§ 1.2105   Bidding application and certification procedures; prohibition of
certain communications.

   Link to an amendment published at  80 FR 56809 , September 18, 2015.

   (a) Submission of Short-Form Application (FCC Form 175). In order to be
   eligible to bid, an applicant must timely submit a short-form application
   (FCC Form 175), together with any appropriate upfront payment set forth by
   Public Notice. Beginning January 1, 1999, all short-form applications must
   be filed electronically.

   (1) All short-form applications will be due:

   (i) On the date(s) specified by public notice; or

   (ii) In the case of application filing dates which occur automatically by
   operation of law (see, e.g., 47 CFR 22.902), on a date specified by public
   notice after the Commission has reviewed the applications that have been
   filed on those dates and determined that mutual exclusivity exists.

   (2) The short-form application must contain the following information:

   (i) Identification of each license, or category of licenses, on which the
   applicant wishes to bid.

   (ii)(A) The applicant's name, if the applicant is an individual. If the
   applicant is a corporation, then the short-form application will require the
   name  and address of the corporate office and the name and title of an
   officer or director. If the applicant is a partnership, then the application
   will require the name, citizenship and address of all general partners, and,
   if  a  partner  is  not a natural person, then the name and title of a
   responsible person should be included as well. If the applicant is a trust,
   then the name and address of the trustee will be required. If the applicant
   is none of the above, then it must identify and describe itself and its
   principals or other responsible persons; and

   (B) Applicant ownership and other information, as set forth in § 1.2112.

   (iii) The identity of the person(s) authorized to make or withdraw a bid;

   (iv) If the applicant applies as a designated entity pursuant to § 1.2110, a
   statement to that effect and a declaration, under penalty of perjury, that
   the applicant is qualified as a designated entity under § 1.2110.

   (v) Certification that the applicant is legally, technically, financially
   and otherwise qualified pursuant to section 308(b) of the Communications Act
   of 1934, as amended. The Commission will accept applications certifying that
   a request for waiver or other relief from the requirements of section 310 is
   pending;

   (vi) Certification that the applicant is in compliance with the foreign
   ownership provisions of section 310 of the Communications Act of 1934, as
   amended;

   (vii) Certification that the applicant is and will, during the pendency of
   its  application(s),  remain  in  compliance with any service-specific
   qualifications applicable to the licenses on which the applicant intends to
   bid including, but not limited to, financial qualifications. The Commission
   may require certification in certain services that the applicant will,
   following  grant  of  a  license,  come  into  compliance with certain
   service-specific rules, including, but not limited to, ownership eligibility
   limitations;

   (viii)  An  exhibit,  certified  as truthful under penalty of perjury,
   identifying  all  parties  with  whom  the  applicant has entered into
   partnerships, joint ventures, consortia or other agreements, arrangements or
   understandings  of  any kind relating to the licenses being auctioned,
   including any such agreements relating to the post-auction market structure.

   (ix) Certification under penalty of perjury that it has not entered and will
   not  enter  into  any explicit or implicit agreements, arrangements or
   understandings of any kind with any parties other than those identified
   pursuant to paragraph (a)(2)(viii) regarding the amount of their bids,
   bidding strategies or the particular licenses on which they will or will not
   bid.

   (x) Certification that the applicant is not in default on any Commission
   licenses and that it is not delinquent on any non-tax debt owed to any
   Federal agency.

   (xi) An attached statement made under penalty of perjury indicating whether
   or not the applicant has ever been in default on any Commission license or
   has ever been delinquent on any non-tax debt owed to any Federal agency.

   Note to paragraph (a): The Commission may also request applicants to submit
   additional information for informational purposes to aid in its preparation
   of required reports to Congress.

   (xii) For auctions required to be conducted under Title VI of the Middle
   Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96) or in which
   any spectrum usage rights for which licenses are being assigned were made
   available under 47 U.S.C. 309(j)(8)(G)(i), certification under penalty of
   perjury  that  the  applicant and all of the person(s) disclosed under
   paragraph (a)(2)(ii) of this section are not person(s) who have been, for
   reasons of national security, barred by any agency of the Federal Government
   from bidding on a contract, participating in an auction, or receiving a
   grant. For the purposes of this certification, the term “person” means an
   individual,  partnership,  association, joint-stock company, trust, or
   corporation, and the term “reasons of national security” means matters
   relating to the national defense and foreign relations of the United States.

   (b) Modification and Dismissal of Short-Form Application (FCC Form 175). (1)
   Any short-form application (FCC Form 175) that does not contain all of the
   certifications required pursuant to this section is unacceptable for filing
   and cannot be corrected subsequent to the applicable filing deadline. The
   application will be dismissed with prejudice and the upfront payment, if
   paid, will be returned.

   (2)  The Commission will provide bidders a limited opportunity to cure
   defects specified herein (except for failure to sign the application and to
   make certifications) and to resubmit a corrected application. 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 errors 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 provisions, and changes in
   the license service areas identified on the short-form application on which
   the applicant intends to bid. Minor amendments include, but are not limited
   to, the correction of typographical errors 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 filing deadlines.

   (3) Applicants who fail to correct defects in their applications in a timely
   manner as specified by public notice will have their applications dismissed
   with no opportunity for resubmission.

   (4) Applicants shall have a continuing obligation to make any amendments or
   modifications that are necessary to maintain the accuracy and completeness
   of  information  furnished in pending applications. Such amendments or
   modifications shall be made as promptly as possible, and in no case more
   than five business days after applicants become aware of the need to make
   any amendment or modification, or five business days after the reportable
   event occurs, whichever is later. An applicant's obligation to make such
   amendments or modifications to a pending application continues until they
   are made.

   (c)  Prohibition  of certain communications. (1) Except as provided in
   paragraphs (c)(2), (c)(3), and (c)(4) of this section, after the short-form
   application filing deadline, all applicants for licenses in any of the same
   geographic license areas are prohibited from cooperating or collaborating
   with respect to, discussing with each other, or disclosing to each other in
   any  manner  the substance of their own, or each other's, or any other
   competing  applicants'  bids  or  bidding strategies, or discussing or
   negotiating settlement agreements, until after the down payment deadline,
   unless such applicants are members of a bidding consortium or other joint
   bidding  arrangement identified on the bidder's short-form application
   pursuant to § 1.2105(a)(2)(viii).

   (2) Applicants may modify their short-form applications to reflect formation
   of  consortia  or changes in ownership at any time before or during an
   auction, provided such changes do not result in a change in control of the
   applicant, and provided that the parties forming consortia or entering into
   ownership  agreements have not applied for licenses in any of the same
   geographic  license  areas.  Such changes will not be considered major
   modifications of the application.

   (3)  After  the filing of short-form applications, applicants may make
   agreements  to  bid  jointly for licenses, provided the parties to the
   agreement  have not applied for licenses in any of the same geographic
   license areas.

   (4)  After  the  filing  of  short-form  applications,  a  holder of a
   non-controlling attributable interest in an entity submitting a short-form
   application may acquire an ownership interest in, form a consortium with, or
   enter into a joint bidding arrangement with, other applicants for licenses
   in the same geographic license area, provided that:

   (i) The attributable interest holder certifies to the Commission that it has
   not communicated and will not communicate with any party concerning the bids
   or bidding strategies of more than one of the applicants in which it holds
   an attributable interest, or with which it has a consortium or joint bidding
   arrangement, and which have applied for licenses in the same geographic
   license area(s); and

   (ii)  The  arrangements  do  not result in any change in control of an
   applicant; or

   (iii) When an applicant has withdrawn from the auction, is no longer placing
   bids  and  has  no further eligibility, a holder of a non-controlling,
   attributable interest in such an applicant may obtain an ownership interest
   in or enter into a consortium with another applicant for a license in the
   same geographic service area, provided that the attributable interest holder
   certifies  to  the Commission that it did not communicate with the new
   applicant prior to the date that the original applicant withdrew from the
   auction.

   (5) Applicants must modify their short-form applications to reflect any
   changes  in  ownership  or in membership of consortia or joint bidding
   arrangements.

   (6)  A  party  that makes or receives a communication prohibited under
   paragraphs (c)(1) or (8) of this section shall report such communication in
   writing immediately, and in any case no later than five business days after
   the  communication  occurs. A party's obligation to make such a report
   continues until the report has been made. Such reports shall be filed as
   directed in public notices detailing procedures for the bidding that was the
   subject  of  the  reported communication. If no public notice provides
   direction, the party making the report shall do so in writing to the Chief
   of the Auctions and Spectrum Access Division, Wireless Telecommunications
   Bureau,  by the most expeditious means available, including electronic
   transmission such as email.

   (7) For purposes of this paragraph:

   (i) The term applicant shall include all controlling interests in the entity
   submitting a short-form application to participate in an auction (FCC Form
   175), as well as all holders of partnership and other ownership interests
   and any stock interest amounting to 10 percent or more of the entity, or
   outstanding stock, or outstanding voting stock of the entity submitting a
   short-form application, and all officers and directors of that entity; and

   (ii) The term bids or bidding strategies shall include capital calls or
   requests for additional funds in support of bids or bidding strategies.

   (8) Prohibition of certain communications for the broadcast television
   spectrum incentive auction conducted under section 6403 of the Middle Class
   Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96).

   (i) For the purposes of the prohibition described in paragraphs (c)(8)(ii)
   and (iii) of this section, the term forward auction applicant is defined the
   same as the term applicant is defined in paragraph (c)(7) of this section,
   and the terms full power broadcast television licensee and Class A broadcast
   television licensee are defined the same as those terms are defined in
   § 1.2205(a)(1).

   (ii) Except as provided in paragraph (c)(8)(iii) of this section, in the
   broadcast television spectrum incentive auction conducted under section 6403
   of  the  Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L.
   112-96), beginning on the short-form application filing deadline for the
   forward auction and until the results of the incentive auction are announced
   by  public  notice, all forward auction applicants are prohibited from
   communicating directly or indirectly any incentive auction applicant's bids
   or bidding strategies to any full power or Class A broadcast television
   licensee.

   (iii) The prohibition described in paragraph (c)(8)(ii) of this section does
   not apply to communications between a forward auction applicant and a full
   power or Class A broadcast television licensee if a controlling interest,
   director, officer, or holder of any 10 percent or greater ownership interest
   in  the  forward  auction applicant, as of the deadline for submitting
   short-form applications to participate in the forward auction, is also a
   controlling interest, director, officer, or governing board member of the
   full power or Class A broadcast television licensee, as of the deadline for
   submitting applications to participate in the reverse auction.

   Note 1 to Paragraph (c): For the purposes of paragraph (c), “controlling
   interests” include individuals or entities with positive or negative de jure
   or de facto control of the licensee. De jure control includes holding 50
   percent or more of the voting stock of a corporation or holding a general
   partnership interest in a partnership. Ownership interests that are held
   indirectly by any party through one or more intervening corporations may be
   determined by successive multiplication of the ownership percentages for
   each link in the vertical ownership chain and application of the relevant
   attribution benchmark to the resulting product, except that if the ownership
   percentage for an interest in any link in the chain meets or exceeds 50
   percent or represents actual control, it may be treated as if it were a 100
   percent interest. De facto control is determined on a case-by-case basis.
   Examples of de facto control include constituting or appointing 50 percent
   or more of the board of directors or management committee; having authority
   to appoint, promote, demote, and fire senior executives that control the
   day-to-day  activities of the licensee; or playing an integral role in
   management decisions.

   Note 2 to Paragraph (c): The prohibition described in paragraph (c)(8)(ii)
   of this section applies to controlling interests, directors, officers, and
   holders of any 10 percent or greater ownership interest in the forward
   auction applicant as of the deadline for submitting short-form applications
   to participate in the forward auction, and any additional such parties at
   any subsequent point prior to the announcement by public notice of the
   results of the incentive auction. Thus, if, for example, a forward auction
   applicant appoints a new officer after the short-form application deadline,
   that new officer would be subject to the prohibition in paragraph (c)(8)(ii)
   of this section, but would not be included within the exception described in
   paragraph (c)(8)(iii).
   Example: Company A is an applicant in area 1. Company B and Company C each
   own 10 percent of Company A. Company D is an applicant in area 1, area 2,
   and area 3. Company C is an applicant in area 3. Without violating the
   Commission's Rules, Company B can enter into a consortium arrangement with
   Company  D  or acquire an ownership interest in Company D if Company B
   certifies either (1) that it has communicated with and will communicate
   neither with Company A or anyone else concerning Company A's bids or bidding
   strategy, nor with Company C or anyone else concerning Company C's bids or
   bidding strategy, or (2) that it has not communicated with and will not
   communicate with Company D or anyone else concerning Company D's bids or
   bidding strategy.

   [ 63 FR 2341 , Jan. 15, 1998, as amended at  63 FR 29958 , June 2, 1998;  63 FR 50799 , Sept. 23, 1998;  64 FR 59659 , Nov. 3, 1999;  65 FR 52345 , Aug. 29,
   2000;  66 FR 54452 , Oct. 29, 2001;  71 FR 15619 , Mar. 29, 2006;  71 FR 26251 ,
   May 4, 2006;  72 FR 48843 , Aug. 24, 2007;  75 FR 4702 , Jan. 29, 2010;  75 FR 9797 , Mar. 4, 2010;  78 FR 50254 , Aug. 16, 2013;  79 FR 48529 , Aug. 15, 2014]

   Effective Date Note: At  79 FR 48529 , Aug. 15, 2014, § 1.2105 was amended by
   revising paragraphs (a)(2)(i), (a)(2)(xii), and (c)(6), and adding paragraph
   (c)(8)  and  notes  1  and  2  to  paragraph  (c).  The  amendments to
   § 1.2105(a)(2)(xii)  and  (c)(6)  contain  information  collection  and
   recordkeeping requirements and will not become effective until approval has
   been given by the Office of Management and Budget.

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