Mr. Robert Pettit
Wiley, Rein & Fielding
1776 K Street, NW
Washington, DC 20006

Dear Mr. Pettit:

This is in response to your letter dated December 20, 2000, on behalf of Noverr Publishing, Inc. 
("NPI"), which seeks clarification of the anti-collusion rule with respect to auction applicants, such as 
NPI, that failed to submit upfront payments and, therefore, never became qualified to bid.

	Your letter states that NPI, holds a controlling interest in Noverr-Omnipoint Wireless, Inc. 
("NOW"), which holds PCS licenses in a number of basic trading areas ("BTAs") in Michigan, including 
the BTA of Mount Pleasant, Michigan.  According to your letter, NOW filed a short-form application 
(FCC Form 175) indicating an intent to bid only on the Mount Pleasant, Michigan BTA in the now 
ongoing C and F block PCS broadband auction, Auction No. 35, which opened on December 12, 2000.  
Your letter further states that NOW never made an upfront payment for the auction and was not listed as 
a qualified bidder for Auction No. 35.  

	NPI claims that it wishes to sell its controlling interest in NOW, but that potential buyers of that 
interest are unwilling to discuss the sale/purchase of  NPI's interest because they believe that such 
discussions might violate the Commission's anti-collusion rule.  NPI, therefore, requests that we clarify 
that the anti-collusion rule does not prohibit NPI from discussing with other bidders the sale of NPI's 
interest in NOW, or alternatively, that we permit NOW to withdraw its auction application so that NOW 
would not be deemed an applicant for purposes of the anti-collusion rule.

	The Commission's anti-collusion rule, at 47 C.F.R.  1.2105(c), states:

[A]fter the short-form application filing deadline, all applicants are prohibited from cooperating, 
collaborating, discussing or disclosing in any manner the substance of their bids or bidding 
strategies, or discussing or negotiating settlement agreements, with other applicants until after 
the down payment deadline . . . .

For purposes of the anti-collusion rule the term "applicant" includes "all controlling interests in the entity 
submitting a short-form application to participate in an auction."  47 C.F.R.  1.2105(c)(6)(i). 

As NPI holds a controlling interest in NOW, which filed a short-form application, NPI is an 
applicant subject to the anti-collusion rule even though it is not a bidder in the auction.   The 
Commission has declined to except such entities from coverage by the anti-collusion rule and we decline 
to except NPI here.   Nevertheless, as we have noted in the past, the anti-collusion rule does not prohibit 
all business discussions among applicants for licenses in the same geographic license areas, including 
discussions concerning the sale of an interest in an applicant's business.   Therefore, such discussions 
with other applicants for licenses in the same geographic license areas must be conducted with great care 
not to convey the substance of bids or bidding strategies of any such applicant. 


						Sincerely,


						
						Margaret W. Wiener
Chief, Auctions and Industry Analysis Division


cc: Eric DeSilva






  See Implementation of Section 309(j) of the Communications Act - Competitive Bidding, PP Docket No. 93-253, 
Second Report and Order, 9 FCC Rcd 2348, 2387-88 para. 225 (1994) and Implementation of Section 309(j) of the 
Communications Act - Competitive Bidding, PP Docket No. 93-253, Second Memorandum Opinion and Order, 9 
FCC Rcd 7245, 7254 paras. 51-52 (1994).

  See Implementation of Section 309(j) of the Communications Act-Competitive Bidding, PP Docket No. 93-253, 
Fourth Memorandum Opinion & Order, 9 FCC Rcd 6858, 6867 paras. 48-51 (1994); Letter to Mark Grady from 
Kathleen O'Brien Ham, Chief, Auctions Division, Wireless Telecommunications Bureau, DA 96-587, 11 FCC Rcd 
10895 (1996).

  See Letter to David L. Nace from Kathleen O'Brien Ham, Chief, Auctions Division, Wireless Telecommunications 
Bureau, DA 96-1566, 11 FCC Rcd 11363 (1996); "Wireless Telecommunications Bureau Provides Guidance on the 
Anti-Collusion Rule for D, E, and F Block Bidders," Public Notice, 11 FCC Rcd 10134 (1996); Amendment of Part 
1of the Commission's Rules -- Competitive Bidding Procedures, Allocation of Spectrum Below 5 GHz Transferred 
from Federal Government Use, 4660-4685 MHz, WT Docket No. 97-82, ET Docket No. 94-32, Third Report and 
Order and Second Further Notice of Proposed Rule Making, 13 FCC Rcd. 374, 467 para. 163 (1997).

  Id.
 

 
 





                                  
        
		DA 00-2905

December 22, 2000		Released: December 26, 2000