97. The Commission adopted the requirement that, at the time of the short-form filing deadline, an Auction 902 applicant must be designated as an ETC for the areas on which it wishes to bid or, if it is a Tribally-owned or -controlled entity, have a pending application for ETC designation for the relevant areas within the boundaries of the Tribal land associated with the Tribe that owns or controls the entity. These ETC designation rules cannot be amended in the context of establishing procedures for Auction 902.
98. Pursuant to the rules, an applicant's ETC designation must cover a sufficient portion of the bidding area to allow it to satisfy the applicable performance requirements. Additionally, as explained in the USF/ICC Transformation Order, a Tribal entity that wins support in Auction 902 while its ETC petition is pending must receive an ETC designation prior to support being authorized. Although the Bureaus realize that in some limited situations the ETC designation process can be arduous, the Commission takes significant efforts to resolve pending filings before it in an expeditious manner.
ii. Access to Spectrum Description and Certification
99. Pursuant to the rules that the Commission adopted in the USF/ICC Transformation Order, and as explained in the Auction 902 Comment Public Notice, any applicant for Auction 902 must have access to the necessary spectrum to fulfill any obligations related to support. In an application to participate in Auction 902, each applicant must describe its required spectrum access and certify that the description is accurate and that the applicant will retain such access for at least five years from the date on which it is authorized to receive support. Specifically, an applicant will be required to disclose whether it currently holds, leases, or has otherwise contracted for access to spectrum consistent with Commission rules and whether such spectrum access is contingent on obtaining support in Auction 902. For the described spectrum access to be sufficient as of the date of the short-form application, the applicant must obtain any necessary approvals from the Commission for the spectrum access prior to filing the application. A pending request for such an approval is not sufficient to satisfy this requirement. Furthermore, only assured access is sufficient, which means that the access must be to licensed spectrum subject to limited access.
100. Tribal entities responding to the Auction 902 Comment Public Notice reiterated policy concerns that have been raised in another rulemaking proceeding concerning the use of spectrum over Tribal lands and the difficulties Tribes face in acquiring spectrum in the secondary market. Several Tribal entities contend that requiring auction participants to have spectrum access as of the date they file their short-form applications for Auction 902 may preclude many Tribes from participating. Other Tribal entities urge the Commission to delay an applicant's certification regarding access to spectrum in the pre-auction phase of Auction 902, and to instead impose the rule on winning bidders as a condition of funding.
101. In the USF/ICC Transformation Order, the Commission rejected the suggestion of some commenters to apply a more relaxed standard that might allow entities to seek to acquire access to spectrum only after becoming a winning bidder. The Commission instead concluded that "failing to ensure spectrum access, on at least a conditional basis, prior to entering a Mobility Fund Auction would be inconsistent with the serious undertaking implicit in bidding for support."
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