Revised Inventory for Auction of Flexible-Use Licenses in the 2.5 GHz Band; Comment Sought on Upfront Payments, Minimum Opening Bids, and Other Procedures for the Revised Inventory of Auction 108

CourtFederal Communications Commission
Citation87 FR 11379
Published date01 March 2022
Record Number2022-04006
Federal Register, Volume 87 Issue 40 (Tuesday, March 1, 2022)
[Federal Register Volume 87, Number 40 (Tuesday, March 1, 2022)]
                [Proposed Rules]
                [Pages 11379-11382]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2022-04006]
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                FEDERAL COMMUNICATIONS COMMISSION
                47 CFR Parts 1 and 27
                [AU Docket No. 20-429; DA 22-171; FR ID 73250]
                Revised Inventory for Auction of Flexible-Use Licenses in the 2.5
                GHz Band; Comment Sought on Upfront Payments, Minimum Opening Bids, and
                Other Procedures for the Revised Inventory of Auction 108
                AGENCY: Federal Communications Commission.
                ACTION: Proposed rule; proposed auction procedures.
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                SUMMARY: The Office of Economics and Analytics and the Wireless
                Telecommunications Bureau seek comment on the application of procedures
                governing the conduct of Auction 108 in light of additions to the
                proposed license inventory for Auction 108.
                DATES: Comments are due on or before March 4, 2022.
                ADDRESSES: Interested parties may file comments in AU Docket No. 20-
                429. Comments may be filed using the Commission's Electronic Comment
                Filing System (ECFS) or by filing paper copies. Interested parties are
                strongly encouraged to file comments electronically.
                 Electronic Filers: Comments may be filed electronically
                using the internet by accessing the ECFS at https://www.fcc.gov/ecfs/.
                 Paper Filers: Parties who choose to file by paper must
                file an original and one copy of each filing.
                 Filings in response to the Public Notice can be sent by
                commercial courier or by first-class or overnight U.S. Postal Service
                mail. All filings must be addressed to the Commission's Secretary,
                Office of the Secretary, Federal Communications Commission.
                 Commercial deliveries (other than U.S. Postal Service
                Express Mail and Priority Mail) must be sent to 9050 Junction Dr.,
                Annapolis Junction, MD 20701.
                 U.S. Postal Service first-class, Express, or Priority mail
                must be addressed to 45 L Street NE, Washington, DC 20554.
                 Until further notice, the Commission no longer accepts any
                hand or messenger delivered filings. This is a temporary measure taken
                to help protect the health and safety of individuals, and to mitigate
                the transmission of COVID-19.
                 Email: Commenters are asked to also submit a copy of their
                comments and reply comments electronically to the following address:
                [email protected].
                FOR FURTHER INFORMATION CONTACT:
                 Auction Legal Questions: Daniel Habif, Lyndsey Grunewald or Scott
                Mackoul, (202) 418-0660.
                 General Auction Questions: (717) 338-2868.
                 Auction Inventory Questions: John Schauble, (202) 418-0797.
                 2.5 GHz Band Licensing Questions: Madelaine Maior, (202) 418-1466,
                or Nadja Sodos-Wallace, (202) 418-0955.
                SUPPLEMENTARY INFORMATION: This is a summary of the Auction 108 Revised
                Inventory Public Notice, AU Docket No. 20-429, DA 22-171, adopted on
                February 18, 2022 and released on February 18, 2022. The complete text
                of the Auction 108 Revised Inventory Comment Public Notice is available
                on the Commission's website at https://www.fcc.gov/auction/108 or by
                using the search function for AU Docket No. 20-429, DA 22-171, on the
                Commission's Electronic Comment Filing System (ECFS) web page at
                www.fcc.gov/ecfs. Alternative formats are available to persons with
                disabilities by sending an email to [email protected] or by calling the
                Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202)
                418-0432 (TTY).
                I. Introduction
                 1. By the Auction 108 Revised Inventory Comment Public Notice, the
                Office of Economics and Analytics (OEA) and the Wireless
                Telecommunications Bureau (WTB) seek further comment on the procedures
                governing to be used for Auction 108. Specifically, OEA and WTB seek
                comment on whether any procedures need to be adjusted for all the
                licenses available in Auction 108 in light of additions to the initial
                license inventory. OEA and WTB also seek comment on minimum opening
                bids and upfront payment amounts for the additional licenses. OEA and
                WTB have updated the listing of county and channel block combinations
                potentially available for Auction 108 to add or remove certain
                licenses, and that updated Attachment A file is available at
                www.fcc.gov/auction/108.
                 2. On January 13, 2021, the Commission released the Auction 108
                [[Page 11380]]
                Comment Public Notice, 86 FR 12146, that sought comment on competitive
                bidding procedures and various other procedures to be used in Auction
                108, in accordance with 47 U.S.C. 309(j)(3). That public notice also
                described the licenses to be offered in Auction 108 and made available
                a file listing all county and channel block combinations potentially
                available for bidding in Auction 108. The Commission noted that the
                results of the Rural Tribal Priority Window would determine the final
                inventory, which would be released in advance of the deadline for the
                submission of short-form applications to bid in Auction 108. On
                February 9, 2022, OEA and WTB released the Auction 108 Further Comment
                Public Notice, 87 FR 8764, seeking comment on the use of a particular
                clock auction format for Auction 108.
                 3. The Auction 108 Revised Inventory Comment Public Notice seeks
                focused input on whether any bidding procedures for Auction 108 as
                described in those previous public notices should be adjusted or
                modified in light of the additions to the auction inventory. The
                Auction 108 Revised Inventory Comment Public Notice proposes no changes
                to the proposed upfront payments, minimum opening bids, or other
                procedures from those described in the Auction 108 Comment Public
                Notice and the Auction 108 Further Comment Public Notice. In light of
                the limited scope of the Auction 108 Revised Inventory Comment Public
                Notice and comments urging the Commission to move expeditiously to the
                start of bidding, OEA and WTB provide for a single round of comments by
                March 4, 2022, with no filing period for reply comments. A subsequent
                public notice will announce final procedures for Auction 108, including
                the procedures, terms, conditions, dates, and deadlines for applying to
                and participating in Auction 108, as well as provide an overview of the
                post-auction application and payment processes. An updated inventory
                for Auction 108 will be released prior to the short-form application
                deadline in Auction 108.
                II. Background on Revised Inventory
                 4. In light of the comments and ex parte filings made in this
                proceeding raising issues concerning the accuracy of the inventory, WTB
                staff performed additional geographic information systems (GIS)
                analysis of existing licenses and prepared a new inventory based on
                license service area data extracted from the Universal Licensing System
                (ULS) on February 2, 2022. For purposes of this analysis, a channel
                block/county combination is considered unavailable, and is therefore
                not included in the inventory, if more than 99.9999% of the area within
                the county is fully encumbered by an existing license for that channel
                block. In the 2.5 GHz Report and Order, 84 FR 57343, the Commission
                determined that any remaining unassigned EBS spectrum will be made
                available for commercial use via competitive bidding. In order to
                identify unassigned spectrum, WTB has treated as encumbered any areas
                calculated to be at least 99.9999% encumbered to avoid computational
                errors found to have been attributable to rounding when calculating
                areas as part of its GIS analysis. As a result of this further
                analysis, and taking into account the information provided by
                commenters, OEA and WTB have added 189 licenses in 130 counties and
                removed 370 licenses in 301 counties from the initial Auction 108
                inventory. The majority of the changes to the inventory result from
                further review of the availability of the J guard band (2568-2572 MHz)
                in Channel Block 2 and further analysis of how canceled, terminated, or
                expired licenses modified the geographic service areas of active
                licenses.
                 5. In addition to reflecting further analysis of the incumbent
                licenses, the revised inventory also takes into account WTB's actions
                in the Rural Tribal Priority Window. The Commission established the
                Rural Tribal Priority Window to provide federally-recognized tribes
                with an opportunity to submit applications to obtain unassigned 2.5 GHz
                spectrum in order to foster communications networks in rural Tribal
                areas. The Rural Tribal Priority Window opened on February 3, 2020, and
                closed on September 2, 2020. The revised inventory reflects licenses
                issued based upon Rural Tribal Priority Window applications acted on to
                date. This inventory does not take into account Rural Tribal Priority
                Window applications that are pending (i.e., counties that are requested
                in whole or in part by pending applications are included in this
                inventory). Potential bidders should be aware that there are counties
                that would become fully or partially encumbered if certain pending
                Rural Tribal Priority Window applications are granted.
                 6. OEA and WTB remind each potential bidder that it is solely
                responsible for investigating and evaluating all technical and
                marketplace factors that may have a bearing on the potential uses of a
                license that it may seek in Auction 108, including the availability of
                unassigned white space in any particular market. In addition to the
                typical due diligence considerations encouraged of bidders in all
                auctions, OEA and WTB call particular attention in Auction 108 to
                potential encumbrances due to existing licenses and the Rural Tribal
                Priority Window issues, which may impact the licenses available in
                Auction 108. OEA and WTB note in particular that there will be a
                substantial number of licenses in inventory where the amount of
                unassigned area or frequency that is unassigned is very small. Each
                applicant should carefully consider these issues and the technical and
                economic implications for commercial use of the 2.5 GHz band. The
                Commission makes no representations or warranties about the use of this
                spectrum for particular services, or about the information in
                Commission databases that is furnished by outside parties. Each
                applicant should be aware that a Commission auction represents an
                opportunity to become a Commission licensee, subject to certain
                conditions and regulations. This includes the established authority of
                the Commission to alter the terms of existing licenses by rulemaking,
                which is equally applicable to licenses awarded by auction. A
                Commission auction does not constitute an endorsement by the Commission
                of any particular service, technology, or product, nor does a
                Commission license constitute a guarantee of business success.
                III. Further Comment Sought on Bidding Procedures
                 7. The Auction 108 Comment Public Notice and the Auction 108
                Further Comment Public Notice sought on procedures for Auction 108,
                including: Auction format; bidding credits for eligible small
                businesses and rural service providers; bidding credit caps; upfront
                payments and bidding eligibility; minimum opening bids and reserve
                prices; activity rules; activity rule waivers and reducing eligibility;
                and information procedures during the auction. In the Auction 108
                Revised Inventory Comment Public Notice, OEA and WTB seek comment on
                whether these procedures need to be adjusted for all licenses in
                Auction 108 in light of additions to the initial license inventory. OEA
                and WTB also seek comment on minimum opening bids and upfront payment
                amounts for the additional licenses in the Auction 108 inventory
                 8. Digital Equity and Inclusion. As part of the Commission's
                continuing effort to advance digital equity for all, including people
                of color and others who have been historically underserved,
                [[Page 11381]]
                marginalized, and adversely affected by persistent poverty and
                inequality, OEA and WTB invite comment on any equity-related
                considerations and benefits (if any) that may be associated with the
                issues discussed in the Auction 108 Revised Inventory Comment Public
                Notice. Specifically, OEA and WTB seek comment on how any bidding
                procedures for Auction 108 as applied to the new licenses included in
                the revised inventory may promote or inhibit advances in diversity,
                equity, inclusion, and accessibility.
                IV. Procedural Matters
                A. Third Supplemental Initial Regulatory Flexibility Analysis
                 9. As required by the Regulatory Flexibility Act of 1980, as
                amended, OEA and WTB prepared a Third Supplemental Initial Regulatory
                Flexibility Analysis (Third Supplemental IRFA) of the possible
                significant economic impact on small entities of the policies and rules
                addressed in the Auction 108 Revised Inventory Comment Public Notice to
                supplement the Regulatory Flexibility Analyses completed in the 2.5 GHz
                Report and Order, Auction 108 Comment Public Notice, Auction 108
                Further Comment Public Notice, and other Commission orders pursuant to
                which Auction 108 will be conducted. Written public comments are
                requested on the Third Supplemental IRFA. Comments must be identified
                as responses to the Third Supplemental IRFA and must be filed by the
                same deadline for comments specified on the first page of the Auction
                108 Revised Inventory Comment Public Notice. OEA and WTB will send a
                copy of the Auction 108 Revised Inventory Comment Public Notice,
                including the Third Supplemental IRFA, to the Chief Counsel for
                Advocacy of the Small Business Administration (SBA). In addition, the
                Auction 108 Revised Inventory Comment Public Notice and Third
                Supplemental IRFA (or summaries thereof) will be published in the
                Federal Register.
                 10. Need for, and Objectives of, the Proposed Rules. The Auction
                108 Revised Inventory Comment Public Notice seeks comment on certain
                procedural rules that may be affected by the new licenses included in
                the revised inventory for Auction 108, which will auction geographic
                overlay licenses of unlicensed spectrum in the 2.5 GHz band (2496-2690
                MHz). This process is intended to provide notice of and adequate time
                for potential applicants to comment on these auction procedures. To
                promote the efficient and fair administration of the competitive
                bidding process for all Auction 108 participants, the Auction 108
                Revised Inventory Comment Public Notice seeks comment on the
                application of auction procedures detailed in the Auction 108 Comment
                Public Notice and the Auction 108 Further Comment Public Notice to the
                new licenses included in the revised inventory.
                 11. The procedures for the conduct of Auction 108 on which the
                Auction 108 Revised Inventory Comment Public Notice seeks comment
                constitute the more specific implementation of the competitive bidding
                rules contemplated by 47 CFR parts 1 and 27, the 2.5 GHz Report and
                Order, and relevant competitive bidding orders, and are fully
                consistent therewith.
                 12. Legal Basis. The Commission's statutory obligations to small
                businesses under the Communications Act of 1934, as amended, are found
                in 47 U.S.C. 309(j)(3)(B) and 309(j)(4)(D). The statutory basis for the
                Commission's competitive bidding rules is found in various provisions
                of the Communications Act of 1934, as amended, including 47 U.S.C.
                154(i), 301, 302, 303(e), 303(f), 303(r), 304, 307, and 309(j). The
                Commission has established a framework of competitive bidding rules,
                updated most recently in 2015, pursuant to which it has conducted
                auctions since the inception of the auctions program in 1994 and would
                conduct Auction 108.
                 13. Description and Estimate of the Number of Small Entities to
                Which the Proposed Rules Will Apply. The RFA directs agencies to
                provide a description of, and, where feasible, an estimate of the
                number of small entities that may be affected by the proposed rules and
                policies, if adopted. The RFA generally defines the term small entity
                as having the same meaning as the terms small business, small
                organization, and small governmental jurisdiction. In addition, the
                term small business has the same meaning as the term small business
                concern under the Small Business Act. A small business concern is one
                which: (1) Is independently owned and operated; (2) is not dominant in
                its field of operation; and (3) satisfies any additional criteria
                established by the SBA.
                 14. As noted above, Regulatory Flexibility Analyses were
                incorporated into the 2.5 GHz Report and Order, the Auction 108 Comment
                Public Notice, and the Auction 108 Further Comment Public Notice. Those
                analyses described in detail the small entities that might be
                significantly affected. In the Auction 108 Revised Inventory Comment
                Public Notice, OEA and WTB hereby incorporate by reference the
                descriptions and estimates of the number of small entities from the
                previous Regulatory Flexibility Analyses in the 2.5 GHz Report and
                Order, the Auction 108 Comment Public Notice, and the Auction 108
                Further Comment Public Notice.
                 15. Description of Projected Reporting, Recordkeeping, and Other
                Compliance Requirements for Small Entities. OEA and WTB do not expect
                the processes and procedures described in the Auction 108 Revised
                Inventory Comment Public Notice will require small entities to hire
                attorneys, engineers, consultants, or other professionals to
                participate in Auction 108 and comply with the procedures ultimately
                established because of the information, resources, and guidance the
                Commission makes available to potential and actual participants. For
                example, OEA intends to make information on the bidding system
                available and offer demonstrations and other educational opportunities
                for applicants in Auction 108 to familiarize themselves with the FCC
                auction application system and the auction bidding system, consistent
                with the previously detailed bidding procedures that may be affected by
                new licenses added to the inventory as described in the Auction 108
                Revised Inventory Comment Public Notice. By providing these resources
                as well as the resources discussed below, OEA and WTB expect small
                entities that use the available resources to experience lower
                participation and compliance costs. Nevertheless, while WTB and OEA
                cannot quantify the cost of compliance with the procedures on which
                they seek comment, they do not believe that the costs of compliance
                will unduly burden small entities that choose to participate in the
                auction because the procedures for Auction 108 on which the Auction 108
                Revised Inventory Comment Public Notice seeks comment are similar in
                many respects to the procedures in recent spectrum auctions conducted
                by the Commission.
                 16. Steps Taken to Minimize the Significant Economic Impact on
                Small Entities, and Significant Alternatives Considered. The RFA
                requires an agency to describe any significant, specifically small
                business, alternatives that it has considered in reaching its proposed
                approach, which may include the following four alternatives (among
                others): (1) The establishment of differing compliance or reporting
                requirements or timetables that take into account the resources
                available to small entities; (2) the clarification, consolidation, or
                simplification of
                [[Page 11382]]
                compliance and reporting requirements under the rule for such small
                entities; (3) the use of performance rather than design standards; and
                (4) an exemption from coverage of the rule, or any part thereof, for
                such small entities.
                 17. OEA and WTB have taken steps to minimize any economic impact of
                the auction procedures on small entities through, among other things,
                the Commission's potential use of previously detailed auction
                procedures under the revised inventory. The Commission received
                comments noting discrepancies in the initial Auction 108 inventory that
                the Commission released with the Auction 108 Comment Pubic Notice. The
                revised inventory will allow all interested parties, including small
                entities, to further evaluate the potential procedures for Auction 108
                in light of the new licenses included in the revised inventory and
                provide small entities with information about the available licenses
                essential to conducting their own due diligence.
                 18. OEA and WTB have also taken steps to minimize any economic
                impact of the auction procedures on small entities through, among other
                things, the many resources the Commission provides potential auction
                participants. These resources, which are described in detail in the
                Supplemental IRFA incorporated into the Auction 108 Comment Public
                Notice are provided at no cost and include, for example, access to an
                FCC Auctions Hotline for information about the auction process and
                procedures; an FCC Auctions Technical Support Hotline for technical
                assistance on issues such as access to or navigation within the
                electronic FCC Form 175 and use of the FCC's auction bidding system; a
                web-based, interactive online tutorial produced by Commission staff to
                familiarize applicants with auction procedures, filing requirements,
                bidding procedures, and other matters related to an auction; the
                opportunity to participate in a mock auction; and the opportunity to
                participate in Auction 108 electronically via the internet.
                Additionally, eligible small businesses and rural service providers
                will be able to participate in the bidding credit program for Auction
                108, which may lower their relative costs of participation. In the
                Auction 108 Revised Inventory Comment Public Notice, OEA and WTB
                incorporate by reference the description of the additional steps taken
                to minimize the significant economic impact on small entities, and
                significant alternatives considered, from the Regulatory Flexibility
                Analysis in the Auction 108 Comment Public Notice and Auction 108
                Further Comment Public Notice.
                 19. These procedures for the conduct of Auction 108 on which the
                Auction 108 Revised Inventory Comment Public Notice seeks comment
                constitute the more specific implementation of the competitive bidding
                rules contemplated by 47 CFR parts 1 and 27, the 2.5 GHz Report and
                Order, and relevant competitive bidding orders, and are fully
                consistent therewith.
                 20. Federal Rules that May Duplicate, Overlap, or Conflict with the
                Proposed Rules. None.
                B. Deadlines and Filing Procedures
                 21. Pursuant to 47 CFR 1.415(d) and 1.419, interested parties may
                file comments on or before the date indicated on the first page of the
                Auction 108 Revised Inventory Comment Public Notice, in AU Docket No.
                20-429. Comments may be filed using the Commission's Electronic Comment
                Filing System (ECFS) or by filing paper copies.
                 22. Ex Parte Requirements. This proceeding has been designated as a
                permit-but-disclose proceeding in accordance with the Commission's ex
                parte rules. Persons making oral ex parte presentations must file a
                copy of any written presentations or memoranda summarizing any oral
                presentation within two business days after the presentation (unless a
                different deadline applicable to the Sunshine Period applies). Persons
                making oral ex parte presentations are reminded that memoranda
                summarizing the presentations must (1) list all persons attending or
                otherwise participating in the meeting at which the ex parte
                presentation was made, and (2) summarize all data presented and
                arguments made during the presentation. If the presentation consisted
                in whole or in part of the presentation of data or arguments already
                reflected in the presenter's written comments, memoranda, or other
                filings in the proceeding, the presenter may provide citations to such
                data or arguments in his or her prior comments, memoranda, or other
                filings (specifying the relevant page and/or paragraph numbers where
                such data or arguments can be found) in lieu of summarizing them in the
                memorandum. Documents shown or given to the Commission staff during ex
                parte meetings are deemed to be written ex parte presentations and must
                be filed consistent with 47 CFR 1.1206(b). In proceedings governed by
                47 CFR 1.49(f) or for which the Commission has made available a method
                of electronic filing, written ex parte presentations and memoranda
                summarizing oral ex parte presentations, and all attachments thereto,
                must be filed through the electronic comment filing system available
                for that proceeding, and must be filed in their native format (e.g.,
                .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding
                should familiarize themselves with the Commission's ex parte rules.
                Federal Communications Commission.
                William Huber,
                Associate Chief, Auctions Division, Office of Economics and Analytics.
                [FR Doc. 2022-04006 Filed 2-28-22; 8:45 am]
                BILLING CODE 6712-01-P
                

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