52. All bidders will compete for support with all other bidders in Auction 902, regardless of the geographic areas they seek to serve with Tribal Mobility Fund Phase I support. Therefore, applicants will be prohibited from making certain communications with all other applicants in Auction 902 regardless of the eligible areas for which they seek support, unless the parties disclose agreements reached between them on their short-form applications.
53. For purposes of the prohibition of certain communications, 47 CFR 1.21002 defines "applicant" broadly to include the applicant, each party capable of controlling the applicant, including all officers and directors, and each party that may be controlled by the applicant or by a party capable of controlling the applicant.
54. Individuals and entities subject to 47 CFR 1.21002 should take special care in circumstances where their officers, directors, and employees may receive information directly or indirectly relating to any competing applicant's bids or bidding strategies. For example, the
55. Moreover, the Bureaus encourage Auction 902 applicants not to use the same individual authorized bidder as is used by another applicant. A violation of 47 CFR 1.21002 could occur if an individual acts as the authorized bidder for two or more competing applicants, and conveys information concerning the substance of bids or bidding strategies between such applicants. Also, if the authorized bidders are different individuals employed by the same organization (e.g., a law firm, engineering firm, or consulting firm), a violation similarly could occur. In such a case, at a minimum, applicants should certify on their applications that precautionary steps have been taken to prevent communication between authorized bidders, and that the applicant and its bidders will comply with 47 CFR 1.21002.
b. Prohibition Applies Until Long-Form Application Deadline
56. The 47 CFR 1.21002 prohibition of certain communications begins at the short-form application filing deadline and ends at the long-form application deadline after the auction closes, which will be announced in a future public notice.
57. Applicants must not communicate directly or indirectly about bids or bidding strategy to other applicants in this auction. 47 CFR 1.21002 prohibits not only communication about an applicant's own bids or bidding strategy, but also communications about another applicant's bids or bidding strategy. While 47 CFR 1.21002 does not prohibit non-auction-related business negotiations among auction applicants, each applicant must remain vigilant so as not to directly or indirectly communicate information that affects, or could affect, bids or bidding strategies.
58. Applicants are cautioned that the Commission remains vigilant about prohibited communications taking place outside of the auction itself. For example, the Commission has warned that prohibited "communications concerning bids and bidding strategies may include communications regarding capital calls or requests for additional funds in support of bids or bidding strategies to the extent such communications convey information concerning the bids and bidding strategies directly or indirectly." Moreover, the Commission has found a violation of the rule against prohibited communications where an applicant used the Commission's bidding system to disclose "its bidding strategy in a manner that explicitly invited other auction participants to cooperate and collaborate in specific markets," and has placed auction participants on notice that the use of its bidding system "to disclose market information to competitors will not be tolerated and will subject bidders to sanctions." Applicants also should use caution in their dealings with other parties, such as members of the press, financial analysts, or others who might become conduits for the communication of prohibited bidding information. For example, an applicant's statement to the press that it intends to stop bidding in the auction could give rise to a finding of a 47 CFR 1.21002 violation. Similarly, an applicant's public statement of intent not to participate in Auction 902 bidding could also violate the rule. Applicants are hereby placed on notice that public disclosure of information relating to bids, bidding strategies, or post-auction market structures may violate 47 CFR 1.21002.
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