Implementation Procedures for the Report and Order and Memorandum Opinion and Order Addressing the 218-219 MHz Services (Formerly Known as Interactive Video and Data Services (IVDS))

AGENCY:

Federal Communications Commission.

ACTION:

Notice.

SUMMARY:

This document addresses implementation procedures regarding restructuring options and remedial bidding credits for current and former 218-219 MHz licensees. These service and technical rules were modified to maximize the efficient and effective use of the band.

FOR FURTHER INFORMATION CONTACT:

Ben Freeman or Nicole Oden of the Auctions and Industry Analysis Division at (202) 418-0660 or Jamison Prime of the Public Safety and Private Wireless Division at (202) 418-0680.

SUPPLEMENTARY INFORMATION:

This is a summary of a Public Notice released April 20, 2000. The complete text of the public notice, including Attachments A, B and C, is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC. It may also be purchased from the Commission's copy contractor, International Transcription Services, Inc. (ITS, Inc.) 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800. It is also available on the Commission's web site at http://www.fcc.gov .

I. Background

1. On September 10, 1999, the Federal Communications Commission (“Commission”) issued FCC 99-239 which modified the regulations governing the licensing of the 218-219 MHz Service (formerly known as IVDS) to maximize the efficient and effective use of the band. See, Part 95 of the Commission's Rules to Provide Regulatory Flexibility in the 218-219 MHz Service (218-219 MHz Order) 64 FR 59656 (November 3, 1999). The 218-219 MHz Order, among other things, modified service and technical rules for the band and extended the license term from five to ten years. The Commission also adopted a restructuring plan for existing licensees that: (i) were current in installment payments as of March 16, 1998; (ii) were less than ninety days delinquent on the last payment due before March 16, 1998; or (iii) had properly filed grace period requests under the former installment payment rules (“Eligible Licensees”). Pursuant to the restructuring plan, Eligible Licensees must make elections on a per license basis, choosing between three options: (a) Reamortization and Resumption of Payments; (b) Amnesty; or (c) Prepayment (Prepayment-Retain or Prepayment-Return). Eligible Licensees that fail to submit a valid election with respect to any license by the Election Date will be assumed to have elected Amnesty for all of their 218-219 MHz licenses.

2. “Ineligible Entities” are those entities that made second down payments and: (i) made some installment payments, but were not current in their installment payments as of March 16, 1998, and did not have a grace period request on file in conformance with the former rules; or (ii) entities that never made any installment payments and did not have a timely filed grace period request on file. Ineligible Entities are not entitled to make elections, but will be granted debt forgiveness for any outstanding balances owed and have previously paid installment payments refunded. The Commission will release a separate Public Notice detailing the procedures by which entities may obtain a refund, with which Ineligible Entities should become familiar.

3. Under the Federal Claims Collection Act and related regulations, only the United States Department of Justice (“DOJ”) can compromise a claim in excess of $100,000. Because many of the debts subject to the 218-219 MHz Order exceed $100,000 and involve FCC licenses subject to common facts and circumstances, the Commission recommended that DOJ approve the compromise of all 218-219 MHz Service debt as a package. On March 1, 2000, DOJ notified the Commission of its decision to approve the debt forgiveness portion of the 218-219 MHz Order.

II. Procedures for Filing Election Notices

A. Mailing Address and Election Date

4. Election Notices may be filed with the Commission from 8:00 a.m. until 7:00 p.m. starting on the date of this Public Notice and ending at 7:00 p.m. on the Election Date. The Election Date will be the last business day of the first full month after the Order on Reconsideration, regarding the 218-219 MHz Order, is released by the Commission. NO ELECTIONS OR CHANGES TO ELECTIONS WILL BE ACCEPTED AFTER 7:00 P.M. ON THE ELECTION DATE. Election Notices should be sent to the Office of the Secretary, Room TW-B204, Federal Communications Commission, 445 12th Street, S.W., Washington, D.C., 20554. In addition, a copy of Election Notices should be sent to Ms. Rachel Kazan, Room 4-A460, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.

5. The Commission must receive all Election Notices, no later than 7 p.m. on the Election Date. Eligible Licensees are solely responsible for ensuring the accurate and timely delivery of their Election Notices. Submission of Election Notices by FAX or electronic mail will NOT be accepted.

B. Format of Election Notices

6. Although there is no specific form for Election Notices, they must contain the following information: (i) Licensee Name; (ii) Licensee Address; (iii) Licensee Phone Number; (iv) Contact Name; (v) Contact Phone Number; (vi) Contact FAX Number; (vii) Taxpayer Identification Number (TIN); (viii) License Number(s); and (ix) Market Area(s).

7. For each eligible license it has, the Eligible Licensee must make a specific election for each individual license designating one of the three election options: (i) Reamortization/Resumption (ii) Amnesty or (iii) Prepayment (Prepayment-Retain or Prepayment-Return). Licensees electing Prepayment must indicate which licenses they want to retain and which licenses, if any, are being returned to the Commission. Any individual filing an Election Notice for a license must be authorized by the Licensee to do so. See Attachment A of the Public Notice for a model Election Notice.

C. Changing Election Notices Prior to the Election Date

8. A previously filed Election Notice may be altered prior to 7:00 p.m. on the Election Date by submitting the following: (i) A statement that the licensee is rescinding its previously filed Election Notice; (ii) a new Election Notice which states its new election; and (iii) a copy of its previously filed Election Notice. These submissions must be simultaneously filed with the Office of the Secretary, Room TW-B204, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. In addition, as with the original Election Notice, a copy of the submissions should be sent to Ms. Rachel Kazan, Room 4-A460, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street, SW, Washington, DC 20554.

No changes or alterations to any elections will be accepted after 7:00 p.m. on the Election Date. Submission of Election Notice changes by FAX or electronic mail will NOT be accepted.

III. Failure To File an Election Notice

9. If an Eligible Licensee fails to file an Election Notice by the specified Election Date, the licensee's license(s) will automatically be placed in the Amnesty category. This will result in the automatic cancellation of the license(s). A list of the licenses that are eligible to participate in the 218-219 MHz restructuring plan, with the corresponding Eligible Licensees is Attachment B of the Public Notice.

A. Changes of Address

10. It is the sole responsibility and obligation of all entities subject to the 218-219 MHz Order, current and former licensees, to keep the Commission apprised of any changes of address. Entities subject to the 218-219 MHz Order that either do not have a current and correct address on file, or have not received a letter of eligibility, should contact the Commission immediately.

11. All change of address notices (or other administrative updates, such as a change in phone number or contact person) must be submitted in writing to the Federal Communications Commission, Attn: Darlene Reeder, 1270 Fairfield Road, Gettysburg, PA 17325-7245. Licensees should include their call sign, market number, and note that the letter is in reference to a 218-219 MHz Service license. For changes of address between now and the Election Date, licensees should also fax a copy of their letters to the FCC's Public Safety and Private Wireless Division in Washington, DC, attention Mr. Jamison Prime, at (202) 418-2643. Note: If a change of address relates to a sale of a license, the licensee must first apply for and receive FCC approval to assign its 218-219 MHz Service license(s).

IV. Defective Elections

12. Examples of defective elections are when a Licensee chooses an option for which it is not eligible; attempts to combine Prepayment with another election option; fails to include the required information in its Election Notice including a Taxpayer Identification Number (TIN) and a specific election for each individual license with corresponding license number; and/or places a condition upon its election. All of the 218-219 MHz licenses held by the licensee making a defective election will be placed in the Amnesty category, resulting in the automatic cancellation of their licenses.

V. Return of Radio Station Authorizations (Licenses)

13. Due to the changed licensing term for the 218-219 MHz services, from five (5) years to ten (10) years, the Commission will issue modified licenses. Therefore, the implementation of the election options by the Commission does not require Eligible Licensees to return their original licenses.

VI. Resumption of Installment Payments

14. For those licensees electing to retain some, or all, of their licenses and resume payments (Reamortization/Resumption), the first installment payment is due at the end of the third month after the Election Date. Installment payments may be made via wire transfer or through an Auction Installment Payment account (AIP) according to the terms set forth in the Installment Payment Acknowledgement. For specific payment instructions see Attachment C of the Public Notice. In addition, under the Commission's part 1 late payment rules for installment payments, licensees will have the option of utilizing the two ninety-day late payment periods, subject to late payment fees, if they need additional time in order to avoid default. Failure to make timely installment payments in this manner will trigger default and the automatic cancellation of the licenses.

VII. “New Money” Payments for Prepayment Option

15. For Eligible Licensees electing the Prepayment option, the Commission must receive all “new money” payments on or before the end of the third month after the Election Date. Licensees may pay the “new money” payment up to ten (10) days late, subject to a 5% late fee. Payments are to be made via wire transfer. Failure to pay the entire “new money” balance due on the license(s) for which Prepayment-Retain was elected will trigger default and the automatic cancellation of the license(s). For specific payment instructions of “new money,” see Attachment C of the Public Notice.

VIII. Refunds and Credits

16. Refunds will be processed via Automated Clearing House Credits (ACH) (i.e. electronic funds transfer). In order for the Commission to issue refunds, all entities due a refund must submit the information necessary for an electronic funds transfer. The Commission will endeavor to issue refunds to all parties within approximately 60 days of the Election Date. The Commission will release a separate Public Notice detailing the procedures by which entities may obtain a refund.

A. For Eligible Licensees

17. The availability of a refund, and the application of installment payment credit, depends upon the election(s) made for each license.

i. Amnesty

18. For an Eligible Licensee that elects Amnesty for all of its licenses, the Commission will retain the down payment (less any remedial bidding credit refund) and forgive the original principal balance and all interest payments due thereon. In addition, for Eligible Licensees in this category that have previously made installment payments, the Commission will refund installment payments in their entirety.

ii. Amnesty and Reamortization/Resumption

19. For an Eligible Licensee that holds more than one license and elects Amnesty for one or more of its licenses, and Reamortization/Resumption for its other license(s), all installment payments made on the Amnesty license(s) will be credited towards the outstanding balance due on the license(s) for which Reamortization/Resumption was elected. The installment payment credits will be applied against the accrued and unpaid interest on the retained license(s), with any excess funds being applied to the principal balance on each retained license. The installment payment credits will be prorated based on the net high bids of the retained licenses.

20. For Eligible Licensees electing Reamortization/Resumption, who may also be due a remedial bidding credit, the 25% remedial bidding credit will be applied prior to the reamortization of the principal and installment payments due on the license(s).

iii. Prepayment (Prepayment-Return and Prepayment-Retain)

21. Eligible Licensees electing Prepayment may retain or return as many licenses as they wish. The Commission will forgive all of the interest due on the retained licenses from grant date until the Election Date, however Eligible Licensees must pay off the original principal balance of the license(s) they retain. Eligible Licensees will be given a prepayment credit equal to 85% of the down payment and 100% of the installment payment(s) made on the license(s) they return to the Commission. If the original principal balance of the license(s) the Eligible Licensee wishes to retain is greater than the prepayment credit, the additional amount due is called “New Money,” and must be remitted to the Commission on or before the end of the third month after the Election Date. If the prepayment credit is greater than the original principal balances, the excess prepayment credits will be refunded to the licensee to the extent that the funds were generated from installment payments. No excess prepayment credits generated from down payments will be refunded.

B. Ineligible Entities

22. Ineligible Entities will have all previously paid installment payments refunded.

IX. Remedial Bidding Credit for Small Businesses

23. The Commission has eliminated women- and minority-owned business bidding credits, simultaneously granting credits of commensurate size to all small businesses. Any Eligible Licensee or Ineligible Entity that paid its first and second down payment, and met the small business qualifications at the time of auction, may receive a 25% remedial bidding credit. The Commission will process a refund of excess down payment equal to the difference between the down payment amounts based on the gross high bid and the net high bid. However, if the small business entity claimed to be a women- or minority-owned business at the time of auction, it already received a 25% bidding credit and therefore no refund is generated by the small business bidding credit. A refund of an excess down payment to Ineligible Entities does not alter their eligibility status. Where a licensee met the qualifications for a small business at the time of auction and paid for their licenses in full, but did not receive a women- or minority-owned business bidding credit, the Commission will process a refund based on the remedial bidding credit. Where licensees paid in full, the refund will be equal to the difference between the gross high bid and the net high bid. The Commission will issue a separate Public Notice with instructions detailing the refund procedures.

24. The refund of excess down payment due to the remedial bidding credit is separate and distinct from the 218-219 MHz restructuring plan. Eligible Licensees should not plan their election options around, or anticipate utilizing, the remedial bidding credit refund to meet any payment obligations to the Commission that may exist after the recalculation of balances or installment payments due on retained licenses. The payment deadline obligations of the licensee may not correspond with the refund of the remedial bidding credit, and the Commission will not credit, or offset, the amount owed after the recalculation based upon the anticipated refund. In addition, the Commission maintains no obligation to remit the remedial bidding credit refund prior to the licensee's payment deadline.

X. Issuance of Modified Radio Station Authorizations (Modified Licenses)

25. The Commission will issue modified licenses that reflect the terms and new expiration date adopted in the 218-219 MHz Order. These licenses will be generated after the Election Date and, in the case of Eligible Licensees who choose Reamortization/Resumption, after the due date of the first installment payment. Licenses for which Reamortization/Resumption was elected will be conditioned upon full payment under the installment payment plan, pursuant to the Commission's rules.

26. Eligible Licensees choosing Amnesty will not receive modified licenses, as they will no longer hold valid licenses in the 218-219 MHz service. Eligible Licensees that elect Amnesty for some licenses and Reamortization/Resumption for others, will receive modified licenses only for those licenses for which it has elected to resume installment payments. Ineligible Entities will not receive modified licenses, as they do not hold valid licenses in the 218-219 MHz service.

27. Because the Commission will automatically mail these modified licenses, licensees need only contact the Commission regarding the issuance of modified licenses if the address used to mail eligibility status and implementation information (or the licensee's address of record, in the case of licenses acquired through lottery) is incorrect.

XI. Radio Station Authorization (License) Renewals

28. No action with regard to license renewals is necessary at this time. Licensees do not have to file any license renewals with the Commission until the current ten (10) year licensing term, from grant date, has expired.

XII. Issuance of Loan Documents

29. Eligible Licensees electing Reamortization/Resumption are required to execute loan documents in the form of an Installment Payment Acknowledgement. In general, the acknowledgement contains a restatement of the amount of the debt owed, the payment terms under the 218-219 MHz Order, and references other Commission rules and regulations related to the payment of installment debt. Licensees may also be required to execute a Uniform Commercial Code financing statement (UCC-1). The requisite loan document(s) must be executed and returned to the Commission (or its agent) within ten business days of receipt. An Eligible Licensee's failure to fully and timely execute and deliver the requisite loan document(s) will result in the automatic cancellation of the license.

30. Eligible Licensees electing Reamortization/Resumption are required to resume payments at the end of the third month after the Election Date, subject to applicable late payment rules, in accordance with the 218-219 MHz Order without regard to whether the requisite loan document(s) have been issued, executed, or returned.

XIII. Additional Information

A. Web Site

31. Documents related to this notice and its implementation may be found on the Federal Communications Commission web site located at http://www.fcc/gov/wtb/auctions/218rest/218rest.html.

B. FCC Reference Center

32. Documents related to this notice and its implementation may also be examined and copied during normal business hours in the FCC Reference Center, 445 12th Street, SW, Room CY-A257, Washington, DC 20554, telephone (202) 418-0270.

C. ITS

33. In addition, documents may be purchased from the Commission's copy contractor, ITS, Inc., 1231 20th Street, NW., Washington, DC 20036, telephone (202) 857-3800.