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                           Before the    
                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           )    

                        FORFEITURE ORDER 

Adopted:  September 21, 2004            Released:  September  22, 

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

      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 

                         II.  BACKGROUND

      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.

                        III.  DISCUSSION

      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 
 anti-collusion rule.46

      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.


                         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) 
(``Consolidated Edison'').

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. 
30, 1994).

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, 
4388 (1991).  

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).