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Federal Communications Commission
Washington, D.C. 20554
In re Application of )
) File No. EB-02-IH-0768
NORTHEAST COMMUNICATIONS OF ) NAL/Acct. No. 00332080022
WISCONSIN, INC. ) FCC Account ID No.
) FRN No. 0002706190
For C Block Facilities in the )
710-716 and 740-746 MHz Bands )
Adopted: September 21, 2004 Released: September 22,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order, issued pursuant to section
503 of the Communications Act of 1934, as amended (the
``Act''), and section 1.80 of the Commission's rules,1 we find
that Northeast Communications of Wisconsin, Inc.
(``Northeast'') engaged in collusive conduct during a
Commission-conducted auction in 2002, in willful violation of
section 1.2105(c) of the Commission's rules.2 Based on the
information before us, we conclude that Northeast is liable for
a forfeiture in the amount of One Hundred Thousand Dollars
2. This matter arises from misconduct by Northeast and
Star Wireless, LLC (``Star''), both applicants in the
Commission's August 27-September 18, 2002, auction of 740 Lower
700 MHz Band C and D block geographic area licenses (``Auction
No. 44''). On August 27, 2003, following a comprehensive
investigation of possible collusive activities between
Northeast and Star, the Chief, Enforcement Bureau (``Bureau''),
issued a Notice of Apparent Liability for Forfeiture (``NAL''),
proposing a forfeiture in the amount of $100,000 against
Northeast.3 The facts that formed the basis for the proposed
forfeiture are set forth at considerable length in the NAL and
are specifically incorporated by reference herein. The NAL
found that Northeast and Star were both applicants for 734 of
the same geographic license areas in Auction No. 44 and that,
during the course of that auction, a representative of
Northeast apparently engaged in prohibited communications with
his counterpart at Star about bidding strategy in that auction,
in apparent willful violation of section 1.2105(c) of the
rules. Specifically, the NAL found that Northeast had
apparently violated section 1.2105(c) on August 29, 2002, when
Patrick Riordan, a shareholder, officer, director of and
authorized bidder for Northeast,4 spoke by telephone with
David G. Behenna, Star's authorized bidder and the President of
PCSGP, Inc., Star's operating manager.5 During their
conversation, Mr. Riordan identified and discussed with Mr.
Behenna the interest of Northeast, which had not made the
necessary upfront payment and, accordingly, could not bid, in
five Wisconsin markets for which licenses were to be auctioned
in Auction No. 44.6
3. On September 26, 2003, Northeast filed its response to
the NAL, requesting rescission or reduction of the proposed
forfeiture.7 Northeast argues that it did not violate section
1.2105(c) because: it was not an applicant in Auction No. 44
when the communications in question took place and, thus, was
not subject to the anti-collusion rule;8 its communication with
Star did not result in the harm against which the rules were
designed to protect;9 section 1.2105(c), as interpreted in the
NAL, is not sufficiently clear to be enforced;10 the
interpretation in the NAL of the anti-collusion rule is overly
broad and not binding on Northeast;11 such interpretation
would, if accurate, cause the rule to be unconstitutional;12
the NAL is at odds with prior Commission determinations;13
Northeast's communication with Star conveyed less information
than communications expressly permitted by the rules;14 and
enforcement of the rule under the unique circumstances
presented in Auction 44 would frustrate the intent of the
rule.15 In addition, Northeast claims that section 1.2105(c)
and the NAL are invalid because there was no valid display of
an Office of Management and Budget control number.16 In
support of its position, Northeast also argues in the
alternative that the proposed forfeiture amount should be
reduced because its violation of the rule was unintentional.
4. In order to enhance and ensure the competitiveness of
markets for communications services, the Commission adopted
rules designed to prevent collusive conduct during auctions,
facilitate the detection of such misconduct and maintain public
confidence in the integrity of the auction process.17 If
collusive conduct were permitted during the auction process,
the result could be the elimination of potential participants
in auctions and competitors in the marketplace.18
Consequently, the Commission adopted section 1.2105(c),
frequently referred to as the ``anti-collusion rule.'' Section
1.2105(c)(1) states, in pertinent part:
[A]fter the [FCC Form 175] 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 applicant's 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).19
Thus, the prohibition against collusive communications set forth
in section 1.2105(c) takes effect on the pre-auction short-form
application deadline and remains in effect until the post-auction
down payment deadline.20 By its very language, the prohibition
contained in section 1.2105(c) applies to all applicants for
licenses in a Commission auction. Moreover, the Commission and
the staff have repeatedly made clear that the prohibition against
collusive contacts and communications contained in section
1.2105(c) applies to all entities that file short-form
applications, regardless of whether they are qualified to bid.21
5. Turning to the instant case, we reject Northeast's
claim that it did not violate section 1.2105(c) because it was
not an applicant in Auction No. 44 on August 29, 2002, when the
communication at issue took place.22 Northeast maintains that
it ceased being an ``applicant,'' subject to section 1.2105(c),
when it failed to make its upfront payment by the May 30, 2002,
deadline.23 Although Northeast's failure to timely make its
upfront payment disqualified it from bidding in Auction No. 44,
neither the Commission's rules nor any public notice released
in connection with Auction No. 44 and suggested that the
Wireless Telecommunications Bureau (``WTB'') would in due
course dismiss its application, the fact remains that as of
August 28 and 29, WTB had not dismissed Northeast's application
and it thus remained pending under the rules.
6. Both before and after commencement of the auction, WTB
issued multiple public notices warning auction applicants that
they were required to comply with section 1.2105(c).24 Two of
those public notices, released shortly before Mr. Behenna
telephoned Mr. Riordan, contained a specific reminder that all
parties that had submitted a short-form application to
participate in Auction No. 44 -- even those that were
disqualified from bidding -- remained subject to the anti-
collusion rule until the October 4, 2002, post-auction down
payment deadline,25 consistent with the definition of
``applicant'' contained in the anti-collusion rule.26 Thus,
Northeast was beyond question an ``applicant for licenses'' for
the purposes of section 1.2105(c) when the two companies
engaged in their discussion -- a communication plainly
prohibited by section 1.2105(c).
7. There also is no merit to Northeast's contention that,
because the communication in question did not result in harm to
the auctions process, Northeast cannot be found to have
violated section 1.2105(c).27 While it is accurate to say that
the underlying purpose of section 1.2105(c) is to prevent
auction abuses, it is the substance and timing of specific
communications that are key in determining whether there has
been a violation of section 1.2105(c), not the impact or
claimed lack thereof on a particular auction. Thus, although
we find on the basis of the information before us that Star
indeed altered its bidding behavior as a result of its
communication with Northeast,28 and that the communication
disadvantaged other auction participants by providing Star with
information that the others lacked,29 we need not rely on that
determination to conclude that Northeast violated section
8. Northeast next makes the bare assertion that section
1.2105(c) is so lacking in specificity ``that any attempt at
enforcement of the rule in this particular instance would
violate . . . fundamental due process . . . .''31 However,
Northeast does not articulate in what manner the rule is vague.
In fact, the rule prohibits certain, specific, and carefully
defined conduct, with temporal limitations, of which Northeast
was or should have been aware, and it explicitly applies to a
narrow class of entities (i.e., ``applicants'') of which
Northeast unquestionably was, and during all relevant times
remained, a member. Northeast also claims that the Commission
failed to provide due notice as to whom section 1.2105(c)
applies because the rule section does not distinguish between
applicants that actually participate in bidding and those, like
Northeast, that have been disqualified from doing so.32
Section 1.2105(c) does not make any distinction between
``bidder/applicants'' and ``non-bidder/applicants'' because the
prohibition on collusive conduct applies to all applicants for
licenses, regardless of whether they are qualified to bid.
Given the plain language of section 1.2105(c) and the plethora
of information that was provided to applicants in Auction No.
44,33 Northeast had sufficient notice regarding the entities to
which section 1.2105(c) applied.
9. We also reject Northeast's claim that it should not be
bound by the interpretation of section 1.2105(c) contained in
the NAL because the staff expanded the rule to include
applicants that have been disqualified from bidding without
having first provided notice and comment in the form of a
rulemaking proceeding.34 The NAL did nothing more than apply
the rule's definition of the word ``applicant'' to Northeast.
In this regard, Northeast filed an application to participate
in Auction No. 44, and despite the fact that it ultimately did
not participate in the bidding and its application was subject
to dismissal, it remained at all relevant times an
``applicant'' therein. Contrary to Northeast's claim, the
Bureau did not rewrite, expand, or otherwise modify section
1.2105(c) when it concluded in the NAL that Northeast was an
``applicant'' subject to the prohibitions encompassed by that
10. There also is no merit to Northeast's further
contention that section 1.2105(c), as interpreted in the NAL,
is unconstitutional.35 The First Amendment36 does not prohibit
all regulation of protected speech. ``[G]overnment regulation
is sufficiently justified if it is within the constitutional
power of the government; if it furthers an important or
substantial governmental interest; if the governmental interest
is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is
no greater than is essential to the furtherance of that
interest.''37 A restriction that regulates the time, place, or
manner of speech may be imposed so long as it is reasonable.38
Such regulations, when narrowly tailored to further an
important governmental interest, may be regarded as content-
neutral as long as the restriction imposed is not substantially
broader than necessary to achieve the government's interest.39
The requirement to narrowly tailor speech-related regulation is
satisfied ``so long as the . . . regulation promotes a
substantial government interest that would be achieved less
effectively absent the regulation.''40 In the instant case,
the Commission has a legitimate and substantial interest in
assuring the integrity of its auctions. Section 1.2105(c)
furthers that interest by proscribing certain communications
during a specific period of time between and among members of a
limited class of persons and entities that voluntarily file
applications to participate in an FCC auction. Because the
Commission's anti-collusion rule is narrowly tailored to
achieve a permissible governmental objective, it is, unlike the
restrictions that were the subject of the cases cited by
Northeast,41 constitutionally sound.
11. Northeast's reliance on Western PCS BTA 1
Corporation42 in support of its argument that the NAL's
interpretation of section 1.2105(c) is inconsistent with
Commission precedent also lacks merit.43 In Western, the
Commission clarified that section 1.2105(c) prohibits not only
a communication of an applicant's own bids or bidding strategy,
but also a communication of another applicant's bids or bidding
strategy.44 As previously stated, there is no lack of clarity
with regard to the applicability of section 1.2105(c) to
Northeast as an applicant in Auction No. 44. Therefore,
Northeast's attempt to claim that Western is a relevant
precedent is unavailing. Northeast knew or should have known
that any communications with Star during the restricted period
about either one or both of their bidding strategies would be
patently inconsistent with the letter and spirit of section
12. We also reject Northeast's assertion that the NAL
imposed an "overly-broad" interpretation of the anti-collusion
rule because certain communications prior to the short-form
filing deadline are not prohibited.45 Significantly, the
application of the rule to Northeast is based not on an
interpretation of the rule, but on the plain language of the
rule. In addition, we reject Northeast's argument that its
private communication of bidding strategy with one other
applicant should be permissible because at the end of each
bidding round during the auction the Commission makes available
to all participants the bids submitted for that round.
Northeast's attempt to revise the language of the rule is
unavailing because it is tantamount to an untimely request for
reconsideration of the 1994 rulemaking order which adopted the
13. Northeast also contends that section 1.2105(c) is
inapplicable to applicants in Auction No. 44 because the
auction was ``unique'' in that bidding was delayed until after
the auction process commenced and a new upfront payment date
was established after the short-form applications were filed.47
According to Northeast, these circumstances ``were not the ones
against which the anti-collusion rule was intended to
protect.''48 There is no rational basis why rules prohibiting
collusive conduct should somehow be rendered inapplicable in
this instance. The policy objective of the rule, preservation
of the integrity of Commission auctions, is as valid here as in
any other Commission-conducted auction.49
14. Northeast's claim that section 1.2105(c) and the
NAL are invalid because the rule did not display a valid
control number pursuant to section 3512 of the Paperwork
Reduction Act50 is similarly meritless.51 The anti-collusion
rule was adopted in a notice and comment rulemaking proceeding.
As part of a larger submission, the anti-collusion rule was
submitted to the Office of Management and Budget (OMB) for
approval. After the Office of Management and Budget approved
these information collections, including the anti-collusion
rule, the appropriate notice was published in the Federal
Register.52 This notice in the Federal Register specifically
mentioned modifications to the Commission's anti-collusion
rules and stated that the OMB Control Number for the anti-
collusion rule and related information collections is 3060-
0600. According to the exact language of the first sentence of
5 C.F.R. § 1320.5(b)(2)(ii), the Commission can meet OMB's
requirement to display an OMB control number in a manner which
is "reasonably calculated to inform the public"53 by several
methods, including by publishing in the Federal Register an
announcement of OMB's approval for the relevant information
collections.54 Therefore, according to the Office of
Management and Budget regulations, there was at least one
appropriate display of the OMB control number for the anti-
collusion rule prior to the submission of the short-form
applications for Auction No. 44.
15. We also find no basis for reducing the forfeiture
proposed in the NAL. Northeast contends that the proposed
forfeiture amount is excessive because it did not intend to
violate section 1.2105(c).55 We take issue with this
contention. Northeast's representative did not accidentally
engage in a telephone conversation with his counterpart at Star
relating to bidding strategies in Auction No. 44 during a
period of time when such communications were strictly
proscribed. While Northeast may not have set out with the
specific intention of violating the rule, its actions were
indisputably willful and inconsistent within the plain language
of section 1.2105(c). In this regard, section 312(f)(1) of the
Act defines willful as ``the conscious and deliberate
commission or omission of [any] act, irrespective of any intent
to violate'' the law.56 The legislative history to section
312(f)(1) of the Act clarifies that this definition of willful
applies to both sections 312 and 503(b) of the Act57 and the
Commission has so interpreted the term in the section 503(b)
16. Finally, we also reject Northeast's contention
that the NAL did not properly consider the factors in imposing
forfeitures, as set forth in section 503(b)(2)(D) of the Act.59
In fact, in the NAL, we carefully considered each of these
factors and have done so again here and find no basis for
mitigating the proposed forfeiture. In light of the repeated
admonitions about collusion by WTB to auction applicants in
Auction No. 44, Northeast knew or should have known that the
communications in which it engaged were proscribed. The
violation committed by Northeast had the potential to affect
the fundamental integrity of Auction No. 44. We conclude that
the amount of the proposed forfeiture is justified in light of
the severity of Northeast's misconduct.
IV. ORDERING CLAUSES
17. Accordingly, IT IS ORDERED THAT, pursuant to
section 503(b) of the Act,60 and sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules,61 Northeast IS LIABLE FOR
A MONETARY FORFEITURE in the amount of One Hundred Thousand
Dollars ($100,000) for willfully violating section 1.2105(c) of
the Commission's rules.
18. Payment of the forfeiture must be made by check
or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the
NAL/Acct. No. and FRN No. referenced above. Payment by check
or money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight mail
may be sent to Bank One/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire transfer may be
made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259.
19. IT IS FURTHER ORDERED that a copy of this
Forfeiture Order shall be sent by Certified Mail Return -
Receipt Requested, to: Northeast Communications of Wisconsin,
Inc., 450 Security Boulevard, P.O. Box 19079, Green Bay,
Wisconsin 54307-9079; and to its counsel: Thomas Gutierrez,
Esq., Lukas, Nace, Gutierrez & Sachs, Chtd., 1111 Nineteenth
Street, N.W., Suite 1200, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 U.S.C. § 503(b); 47 C.F.R. § 1.80.
2 47 C.F.R. § 1.2105(c).
3 In re Northeast Communications of Wisconsin, Inc., 18 FCC Rcd
17,672 (EB 2003) (``NAL'').
4 Northeast is a closely-held telecommunications holding company
located in Green Bay, Wisconsin, owned and controlled by four
siblings, Patrick D. Riordan, Robert H. Riordan, Micki Harper and
Ray J. Riordan, who are each officers and directors and
collectively hold over 52 percent of its stock.
5 Mr. Behenna holds 100% of PCSGP's fully diluted shares of
common stock. He is PCSGP's President, Secretary, Treasurer and
sole Director. See Star FCC Form 175, Exhibit A.
6 See NAL, paras. 11-14.
7 See Response To Notice of Apparent Liability, filed by Thomas
Gutierrez, Esquire, counsel for Northeast, on September 26, 2003
8 Id. at 4.
9 Id. at 6.
10 Id. at 7-9.
11 Id. at 9.
12 Id. at 11.
13 Id. at 12.
14 Id. at 13.
15 Id. at 14-15.
16 Id. at 15-16.
17 See Implementation of Section 309(j) of the Communications Act
-- Competitive Bidding, Second Report and Order, 9 FCC Rcd 2348,
2386-88, ¶¶221-226 (1994) (``Competitive Bidding Second Report
and Order'') (``[W]e believe that the competitiveness of the
auction process and of post-auction market structure will be
enhanced by certain additional safeguards designed to reinforce
existing laws and facilitate detection of collusive conduct.'').
18 Competitive Bidding Second Report and Order, 9 FCC Rcd 2348,
2387, ¶223; Implementation of Section 309(j) of the
Communications Act -- Competitive Bidding, Memorandum Opinion and
Order, 9 FCC Rcd 7684, 7687-7688, ¶10 (1994) (``Our anti-
collusion rules are intended to protect the integrity and
robustness of our competitive bidding process.'').
19 47 C.F.R. § 1.2105(c)(1). Section 1.2105(a) requires that
each auction applicant submit a short-form application (FCC Form
175) in order to participate in an auction. See 47 C.F.R.
20 47 C.F.R. § 1.2105(c)(1). See also Amendment of Part 1 of the
Commission's Rules- Competitive Bidding Procedures, Order on
Reconsideration of the Third Report and Order, Fifth Report and
Order, and Fourth Further Notice of Proposed Rulemaking, 15 FCC
Rcd 15923 (2000) at 15297-98, ¶¶ 7-8.
21 The public notice announcing how parties could apply to
participate in Auction No. 44 explicitly reminded potential
participants of the Commission's anti-collusion rule, that the
rule was applicable to all applicants, and that the rule would
apply to all applicants from the deadline for filing short-form
applications until the post-auction down payment deadline. See
Auction of Licenses in the 698-746 MHz Band Scheduled for June
19, 2002, Public Notice, DA 02-563 (WTB rel. March 20, 2002) at 7
(``Procedures PN'') (``[T]he Commission's rules prohibit
applicants for the same geographic license area from
communicating with each other during the auction about bids,
bidding strategies, or settlements. This prohibition begins at
the short-form application filing deadline and ends at the down
payment deadline after the auction.''). The Procedures PN
directed applicants to a list of precedents applying the anti-
collusion rule, several of which explicitly applied the rule to
applicants, such as Northeast here, that subsequently did not
bid in the auction. Id. at Attachment G (citing, inter alia,
Letter to Robert Pettit, Esquire, from Margaret W. Wiener, Chief,
Auctions and Industry Analysis Division, Wireless
Telecommunications Bureau, Federal Communications Commission, 16
FCC Rcd 10080 (WTB 2000) (declining to except an applicant's
controlling interest from coverage by the anti-collusion rule,
even though the applicant never made an upfront payment for the
auction and was not listed as a qualified bidder); Letter to Mark
Grady, President, Communications Venture PCS Limited Partnership,
from Kathleen O'Brien Ham, Chief, Auctions Division, Wireless
Telecommunications Bureau, Federal Communications Commission, 11
FCC Rcd 10895 (WTB 1996) (``Even when an applicant has withdrawn
its application during the course of the auction, the applicant
may not enter into a bidding agreement with another applicant
bidding on the geographic license areas from which the first
applicant withdrew.'')). See also Implementation of Section
309(j) of the Communications Act - Competitive Bidding, Fourth
Memorandum Opinion and Order, 9 FCC Rcd 6858, 6867 ¶ 50-51 (1994)
(rejecting the argument that communications prohibited by the
anti-collusion rule should be permitted during auctions between
active and non-active bidders); Letter to John Reardon, Secretary
to the Board of Directors and General Counsel, Mobex
Communications, Inc., from Amy J. Zoslov, Chief, Auctions and
Industry Analysis Division, Wireless Telecommunications Bureau,
Federal Communications Commission, 13 FCC Rcd 17877 (WTB 1998)
(``When the short-form filing deadline passes, the anti-collusion
rule applies to all applicants with submitted short-form
applications . . . We . . . remind applicants that submitted
applications, once the short-form deadline passes, trigger
application of the anti-collusion rule even if they are later
22 Response at 2-7.
23 Northeast's reliance on section 1.935 of the rules to support
its claim that it ceased being an applicant for the purposes of
the anti-collusion rule lacks merit. Response at 5-6. Section
1.935 relates to agreements among mutually exclusive applicants
to dismiss their applications and clearly is inapplicable here.
Northeast's further reliance on Public Notice, DA 02-659, 17 FCC
Rcd 5,140 (WTB rel. March 19, 2002) and Public Notice, DA 02-
1346, 17 FCC Rcd 10,700 (WTB rel. June 7, 2002), also is
misplaced. The March 19 Public Notice was issued in connection
with Auction No. 31, not Auction No. 44, and the June 7 Public
Notice merely identified Northeast as among those applicants that
had failed to timely make upfront payments and were, therefore,
ineligible to bid in Auction No. 44. Neither public notice
affected Northeast's status as an ``applicant'' in Auction No. 44
for purposes of the anti-collusion rule. We also reject
Northeast's argument that, because it decided the term ``bidder''
may be substituted for the term ``applicant'' in the context of
section 1.2105(c), and Northeast was not a bidder in Auction No.
44 , it follows that the Commission is prevented from lawfully
concluding that Northeast violated section 1.2105(c). Response
at 2-3. Northeast's interpretation of section 1.2105(c) ignores
the plain language of the rule. In this regard, although section
1.2105(c) initially referenced ``bidders,'' it was subsequently
amended in 1994 to apply to ``applicants.'' That amendment
occurred years before the Star and Northeast applications were
filed. See In the Matter of Implementation of Section 309(J) of
the Communications Act - Competitive Bidding, 9 FCC Rcd 7,684
24 Procedures PN at 8; Status PN at 4-5; Auction of Licenses for
698-746 MHz Band; 128 Qualified Bidders, Public Notice, DA 02-
1346 (WTB rel. June 7, 2002) (``Qualified Bidders PN'') at 7;
Auction No. 44, Revised Qualified Bidder Notification; 125
Qualified Bidders, Public Notice, DA 02-1933 (WTB rel. August 7,
2002) (``Revised Qualified Bidders PN'') at 7-8; Auction No.44
Revised Schedule, License Inventory, and Procedures, Public
Notice, DA 02-1491 (WTB rel. June 26, 2002) (``Revised Schedule,
Inventory and Procedures PN'') at 2.
25 Revised Schedule, Inventory and Procedures PN at 2; Revised
Qualified Bidders PN at 7.
26 ``The term applicant shall include all controlling interests
in the entity submitting a short-form application to participate
in an auction (FCC Form 175) . . . .'' 47 C.F.R. §
27 Response at p. 6-7, 13-14.
28 The Commission's bidding records reveal that, after the August
29, 2002, conversation between Star's Behenna and Northeast's
Riordan, Star began to bid actively and aggressively for
Wisconsin and Iowa markets -- areas for which Star had shown no
interest in its earlier bidding and in which Star, unlike
Northeast, had no operations. Thus, the parties' denials
notwithstanding, the evidence shows that the subject
communication significantly impacted Star's auction bidding
strategy. See NAL, paras. 14 and 19, note 60.
29 See NAL, para. 20.
30 As described in the NAL, Star learned of Northeast's interest
in certain markets from the auction-related communications that
occurred between Mr. Behenna and Mr. Riordan, and thus knew about
potential post-auction demand for the licenses in certain markets
in Auction No. 44. During those communications, Northeast had an
opportunity to influence Star's auction plan and strategy for its
own purposes. NAL, 18 FCC Rcd at 17,681. See Amendment of Part 1
of the Commission's Rules - Competitive Bidding Procedures, WT
Docket No. 97-82, Third Report and Order and Second Further
Notice of Proposed Rule Making, 13 FCC Rcd 374, 468 (1997)
("[A]uction applicants should avoid all discussions with each
other that will likely affect bids or bidding strategy . . . .").
31 Response at 8.
32 Id. at 9.
33 Supra, note 20.
34 Response at 9-11.
35 Id. at 11-12.
36 U.S. Const. amend. I (``First Amendment''). The First
Amendment states: ``The Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.''
37 U.S. v. O'Brien, 391 U.S. 369 at 377, 88 S.Ct. 1675 at 1678,
20 L.Ed.2d 672 at 680 (1968) (``O'Brien'').
38 Consolidated Edison Co. of N.Y. v. Public Service Commission
of N.Y., 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980)
39 Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105
L.Ed.2d 661 (1989) (``Ward'').
40 Ward at 491 U.S. 799, citing United States v. Albertini, 472
U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536 (1985).
41 In Simon & Schuster v. New York Crime Victims Board, 505 U.S.
105 (1991), the Supreme Court invalidated New York State's so-
called ``Son of Sam'' law, which prohibited a criminal from
profiting from his crimes. The Court determined that the law was
inconsistent with the First Amendment because it was not narrowly
tailored to achieve the State's intended objective. See also
Consolidated Edison, supra, note 38. There the Supreme Court
invalidated a New York Public Service Commission regulation which
prohibited utility bill inserts that discussed controversial
issues of public policy. The Court found that the restriction
directly infringed the appellant's rights under the First and
Fourteenth Amendments because it was not a valid time, place or
manner restriction, a permissible subject-matter regulation, or a
narrowly drawn prohibition justified by a compelling state
42 Western PCS BTA 1 Corp., 14 FCC Rcd 21,571 (1999)
43 See Response at 12.
44 Northeast's analysis of the Western decision is directly
contradicted by the Commission's characterization of the Order:
``In this order, we clarify that the Section 1.2105(c)(1)
prohibition on applicants' ``cooperating, collaborating,
discussing or disclosing in any manner the substance of their
bids or bidding strategies'' prohibits an auction applicant from
cooperating or collaborating with respect to, or discussing,
another applicant's bids or bidding strategies, even if it does
not discuss its own bids or bidding strategy.'' (emphasis added).
Western, 14 FCC Rcd at 21,574. See also Amendment of Part 1 of
the Commission's Rules - Competitive Bidding Procedures, WT
Docket No. 97-82, Seventh Report and Order, 16 FCC Rcd 17,546
45 Northeast also provides as an example the provisions of
Section 1.2105(c)(4), which permit non-controlling attributable
interests in a short-form applicant to acquire an ownership
interest in, or enter into a joint bidding arrangement with,
other auction applicants. However, the rule does not permit non-
controlling attributable interest holders to communicate bids or
bidding strategies of more than one of the applicants in which it
holds an attributable interest.
46 Competitive Bidding Second Report and Order, 9 FCC Rcd at 2386
- 88 ¶¶ 221 - 226.
47 Response at 14-15.
48 Id. at 15.
49 In fact, after Auction No. 44 had been delayed, applicants for
the auction were reminded of the continued applicability of the
anti-collusion rule in two public notices released before the
auction-related communications of Mr. Behenna and Mr. Riordan.
Revised Schedule, Inventory and Procedures, Public Notice, 17 FCC
Rcd 11,935, 11,936 (WTB 2002); Revised Qualified Bidders, Public
Notice, 17 FCC Rcd 15,543, 15549 (2002).
50 44 U.S.C. § 3512 (``The Paperwork Reduction Act'').
51 Response at 15-16. "Here, no valid control number is
displayed with respect to section 1.2105(c). See section 0.408
of the rules . . . Due to the lack of display of a proper control
number, the forfeiture proposed in the Notice must be rescinded."
Response at 16 (citing Kent S. Foster, Memorandum Opinion and
Order, 7 FCC Rcd 7971 (1992)).
52 Public Information Collections Approved by Office of
Management and Budget, PP Docket No. 93-253, Notice, 59 Fed. Reg.
52,302 (Oct. 17, 1994); see also Public Information Collection
Requirements Submitted to Office of Management and Budget for
Review, PP Docket No. 93-253, Notice, 59 Fed. Reg. 49,938 (Sept.
53 5 C.F.R. § 1320.5(b)(2)(ii) stipulates that "[a]n agency shall
provide the information described in paragraph (b)(2)(i) of this
section in a manner that is reasonably calculated to inform the
54 5 C.F.R. § 1320.5(b)(2)(ii)(C).
55 Response at 16.
56 47 U.S.C. § 312(f)(1).
57 H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
58 See, e.g., Application for Review of Southern California
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387,
59 Id. at 16-18.
60 47 U.S.C. § 503(b).
61 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).