Attention: The New Anti-Collusion Rules Have the OMB Stamp of Approval

Short-circuiting conventional Paperwork Reduction Act requirements, the Office of Management and Budget has signed off on the strict auction-related rules just in time for the upcoming Broadcast Incentive Auction.

anti-collusion-1The FCCs Incentive Auction Report and Order, released June 2, 2014, included anti-collusion provisions forbidding as of the close of the reverse auction application window (i.e., January 12, 2016) communications relating to incentive auction participation and bidding strategies between or among pretty much anybody. (The limited exceptions involve communications between any two or more full power TV or Class A TV licensees that share common ownership, officers, or directors or have a channel-sharing agreement in place but even folks who think that they fall within the exception would be wise to doublecheck before they open the conversation.) The new anti-collusion prohibitions, spelled out in Section 1.2205(c) and (d) of the FCCs rules, not only forbid certain communications but also require parties who violate the prohibition to squeal on themselves by promptly reporting their transgression to the FCC.

Since those reporting requirements constitute information collections, they of course had to be run past the Office of Management and Budget, thanks to the Paperwork Reduction Act (PRA). And sure enough, in the 2014 Incentive Auction Report and Order, the FCC expressly said that it would get on that process and let us all know once OMB gave it the thumbs-up. And, according to a notice in the New Years Eve edition of the Federal Register, OMB did indeed approve the new rules on December 10, 2015.

But the New Years Eve notice of hat approval indicates that the approval was issued on an emergency basis. Why the emergency if the rules were adopted a year and a half ago? A little digging through the OMB website indicates that, while the rules may have been released back in June, 2014, the FCC didnt get around to asking for OMB approval until (wait for it ) November 10, 2015. Since the PRA process by law requires at least 90 days (consisting of one 60-day comment period and a further 30-day comment period), plus whatever time OMB might need to review any incoming comments, cogitate on the proposed information collection, resolve any possible questions with the FCC, and then make its decision, its obvious that a process initiated on November 10, 2015 could not (absent a time machine in good working order) be completed by January 12, 2016, when reverse auction applications are due and the Cone of Silence descends on all of us.

That explains the FCCs request for emergency treatment (which, we can all agree, OMB managed to process in a mere 30 days). But it does not explain what took the FCC so long to get the ball rolling in the first place. Thats especially so in view of the fact that the 2014 Report and Order expressly acknowledged the need for OMB approval.

In any case, when it comes to bids and/or bidding strategies in the Incentive Auction, be sure to button your mouth starting at 6:00 p.m. (ET) on January 12, 2016.

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