Judges Focus on Band Entry, Sunset Date of ICO’s Appeal of FCC BAS Relocation Costs Ruling

Judges Merrick Garland and Brett Kavanaugh asked about the FCC’s interpretation of BAS band entry, a major consideration when the band’s licensees became responsible for the relocation costs, as well as the applicability of the commissions’ emerging technologies policy in the BAS context. The FCC had called for comment on a proposed definition of “band entry” but ICO Global didn’t respond, Garland noted. Jeffrey Clark, attorney for ICO, argued that by rulemaking, the FCC retroactively altered the prior definition of “entering the band.” Band entry now is said to have occurred merely when a Mobile Satellite Spectrum (MSS) licensee “certifies that its satellite is operational for purposes of meeting the operational milestone of its authorization,” he said. He argued that the new definition departs from the emerging technologies guidance, which the FCC had conceded was applicable to the BAS relocation context. He claimed the BAS order doesn’t address the FCC’s prior requirement in the emerging technologies proceedings that a licensee “enters the band” only if it has “turned on” or is “preparing to turn on” commercial satellite power.

The FCC didn’t change the meaning of band entry but defined it for the first time, Joel Marcus, attorney for the FCC said. Under the FCC’s emerging technologies policies, an MSS entity enters the band when it certifies that its satellite is operational for purposes of meeting its operational milestone, he said. The commission distinguished the MSS context from other band-clearing contexts, which use a market-by-market or system-by-system test for incurring cost sharing liability, he said. Judge Judith Rogers asked if interference is the focus of band entry requirements. Marcus emphasized the emerging technologies principles. Specifically, a later entrant is required to share in the cost that an earlier entrant has incurred, if the subsequent entrant would have caused interference to the incumbent licenses, he said. The fight between Sprint and MSS companies stems from the carrier’s clearing BAS spectrum and expecting reimbursement of clearing fees by users of the spectrum, based on the FCC’s emerging technology policy. Sprint, which has said it’s owed about $120 million from each licensee, DBSD and TerreStar, sued ICO Global and TerreStar in the federal court in the Eastern District of Virginia, which had asked the FCC for band entry interpretation.

Garland and Kavanaugh asked if changes in the cost-sharing obligations deadline were clearly explained. The agency fails to explain, or at times even acknowledge, the changed deadline for cost-sharing obligations of MSS operators, Clark claimed. At Sprint’s request, the FCC clarified in its BAS order that the sunset date for the BAS band was Dec. 9, 2013, he noted. But that sunset date wasn’t the expiration date for cost-sharing obligations of MSS operators, he claimed. Instead, the expiration date was the 800 MHz reconfiguration deadline, which had been established by the FCC at 36 months from the start of reconfiguration, or June 26, 2008, he said. The FCC’s definition of “enter the band” isn’t retroactive, Marcus said. The 800 MHz Order established that MSS operators would share BAS relocation costs and was predicated on the expectation that those operators would have an operational system before 800 MHz reorganization was completed, he said. The trigger for cost-sharing thus was tied to system operation, he said.