The Federal Communications Commission (FCC or Commission) has released long-awaited guidance regarding the prohibition of certain communications during the 600 MHz Incentive Auction, scheduled to begin next year. Beginning on the deadline for submitting reverse auction applications, with certain exceptions, the Commission’s rules prohibit all full power and Class A broadcast television licensees from communicating any Incentive Auction applicant’s bids or bidding strategies to any other full power or Class A licensee, or to any forward auction applicant. After the deadline for filing forward auction applications, the Commission’s rules also prohibit cooperation or communications between forward auction applicants (and, in some cases, non-applicant communications service providers) regarding bids or bidding strategies. The rules also prohibit forward auction applicants from communicating directly or indirectly any bids or bidding strategies to any full power or Class A broadcast television licensee.
Industry stakeholders had expressed concern regarding the possibility of lengthy quiet periods during which companies would refrain from participating in typical business discussions for fear of breaking the Commission’s rules. The guidance clarified that business discussions and negotiations that are unrelated to bids and bidding strategies are not prohibited by the rule. For full power and Class A licensees, communicating merely whether a licensee has or has not applied to participate does not violate the rule whereas communicating how a licensee will participate in the auction does. For forward auction applicants, the guidance clarified that only agreements relating to licenses in the auction must be disclosed and that the communications prohibition will not disrupt existing agreements that are operational in nature.