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Federal Register / Vol. 86, No. 118 / Wednesday, June 23, 2021 / Rules and Regulations
10. Antitrust Laws 66. Regardless of compliance with the Commissions rules, applicants remain subject to the antitrust laws, which are designed to prevent anticompetitive behavior in the marketplace.
Compliance with the disclosure requirements of section 1.2105c4 will not insulate a party from enforcement of the antitrust laws. For instance, a violation of the antitrust laws could arise out of actions taking place well before any party submits a short-form application. The Commission has cited a number of examples of potentially anticompetitive actions that would be prohibited under antitrust laws: For example, actual or potential competitors may not agree to divide territories in order to minimize competition, regardless of whether they split a market in which they both do business, or whether they merely reserve one market for one and another market for the other.
67. To the extent that Commission staff become aware of specific allegations that suggest that violations of the federal antitrust laws may have occurred, they may refer such allegations to the United States Department of Justice for investigation.
If an applicant is found to have violated the antitrust laws or the Commissions rules in connection with its participation in the competitive bidding process, then it may be subject to a forfeiture and may be prohibited from participating further in Auction 110 and in future auctions, among other sanctions.

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H. Provisions for Small Businesses and Rural Service Providers 68. A bidding credit represents an amount by which a bidders overall payment across all the licenses won will be discounted, subject to the caps discussed below. As set forth in section 1.2110 of the Commissions rules, and as described below, these rule revisions include, but are not limited to: 1
Adopting a two-pronged standard for evaluating eligibility for small business benefits, 2 establishing a new attribution rule for certain disclosable interest holders of applicants claiming designated entity benefits, 3 updating the gross revenue amounts defining eligibility for small business benefits, 4
creating a separate bidding credit for eligible rural service providers, and 5
establishing caps on the total amount of designated entity benefits any eligible winning bidder may receive.
69. In Auction 110, designated entity bidding credits will be available to applicants demonstrating eligibility for a small business or a rural service
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provider bidding credit and subsequently winning licenses. These bidding credits will not be cumulative an applicant is permitted to claim either a small business bidding credit or a rural service provider bidding credit, but not both. Each applicant must also certify that it is eligible for the claimed bidding credit in its FCC Form 175. In addition to the information provided below, each applicant should review carefully the Commissions decisions regarding the designated entity provisions as well as the part 1 rules.
70. In particular, the Commission reminds applicants applying for designated entity bidding credits that they should take due account of the requirements of the Commissions rules and implementing orders regarding de jure and de facto control of such applicants. These rules include a prohibition, which applies to all applicants whether they seek bidding credits or not, against changes in ownership of the applicant that would constitute an assignment or transfer of control. This may, in some circumstances, include changes in officers or directors. Applicants should not expect to receive any opportunities to revise their ownership structure after the filing of their shortand long-form applications, including making revisions to their agreements or other arrangements with interest holders, lenders, or others in order to address potential concerns relating to compliance with the designated entity bidding credit requirements. This policy will help to ensure compliance with the Commissions rules applicable to the award of bidding credits prior to the conduct of the auction, which will involve competing bids from those that do and do not seek bidding credits, and thus preserves the integrity of the auction process. OEA and WTB also believe that this will meet the Commissions objectives in awarding licenses through the competitive bidding process.
1. Small Business Bidding Credit 71. For Auction 110, bidding credits will be available to eligible small businesses and consortia thereof, subject to the caps discussed below. Under the service rules applicable to the 3.45 GHz Service licenses to be offered in Auction 110, the level of bidding credit available is determined as follows:
A bidder that qualifies as a small businessi.e., one with attributed average annual gross revenues that do not exceed $55 million for the preceding five yearsis eligible to receive a 15%
discount on its overall payment.

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A bidder that qualifies as a very small businessi.e., one with attributed average annual gross revenues that do not exceed $20 million for the preceding five yearsis eligible to receive a 25% discount on its overall payment.
72. In adopting this two-tiered approach in the 3.45 GHz Second Report and Order, the Commission observed that this approach would provide consistency and predictability for small businesses.
73. Small business bidding credits are not cumulative; an eligible applicant may receive either the 15% or the 25%
bidding credit on its overall payment, but not both. The Commissions unjust enrichment provisions also apply to a winning bidder that uses a bidding credit and subsequently seeks to assign or transfer control of its license within a certain period to an entity not qualifying for at least the same level of small business bidding credit.
74. Each applicant claiming a small business bidding credit must disclose the gross revenues for the preceding five years for each of the following: 1 The applicant, 2 its affiliates, 3 its controlling interests, and 4 the affiliates of its controlling interests. The applicant must also submit an attachment that lists all parties with which the applicant has entered into any spectrum use agreements or arrangements for any licenses that may be won by the applicant in Auction 110.
In addition, to the extent that an applicant has an agreement with any disclosable interest holder for the use of more than 25% of the spectrum capacity of any license that may be won in Auction 110, the applicant must disclose the identity and the attributable gross revenues of any such disclosable interest holder. This attribution rule will be applied on a license-by-license basis. As a result, an applicant may be eligible for a bidding credit on some, but not all, of the licenses for which it is bidding in Auction 110. If an applicant is applying as a consortium of small businesses, then the disclosures described in this paragraph must be provided for each consortium member.
2. Rural Service Provider Bidding Credit 75. An eligible applicant may request a 15% discount on its overall payment using a rural service provider bidding credit, subject to the cap discussed below. To be eligible for a rural service provider bidding credit, an applicant must: 1 Be a service provider that is in the business of providing commercial communications services and, together with its controlling interests, affiliates, and the affiliates of its controlling
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