FCC Created New Spectrum Screen Standards for AT&T/Qualcomm, Applied it to AT&T/T-Mobile, Record Shows
The FCC created new spectrum screen standards in its review of the AT&T/Qualcomm deal and then applied those standards to its review of AT&T’s proposed acquisition of T-Mobile, records show and an FCC official confirmed Monday. In its staff report on the T-Mobile acquisition (CD Nov 30 p1), the FCC mentions as part of its spectrum analysis that the “Commission has routinely updated its calculus for the second part of its test -- the spectrum screen -- when ‘new’ spectrum has been made available for mobile wireless services.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
A later footnote in the same paragraph refers to AT&T’s efforts to buy spectrum from Qualcomm. “In that draft Order, the Commission would reduce the amount of SMR spectrum used in the spectrum screen from 26.5 megahertz to 14 megahertz,” the footnote said. The Qualcomm order has not been approved by the commission.
AT&T questioned the FCC’s ability to change spectrum screen standards without public notice. The spectrum aggregation screen used in merger analysis is obviously a significant Commission tool,” AT&T Senior Vice President Bob Quinn told us. “The Staff Report issued last week in paragraph 45, footnote 137 used a revised spectrum screen that it hopes to adopt in our Qualcomm spectrum acquisition proceeding. The impact of that change was significant in terms of number of markets impacted -- estimates indicate the revised screen caused a trigger in approximately 35 percent more markets than the screen currently in place. Changes to significant analysis like the spectrum aggregation screen belongs in a fully transparent, regularly conducted Commission proceeding with opportunity for notice and comment for all parties.”
An FCC official defended the agency’s conduct. “We periodically update the screen to reflect availability in the marketplace,” the official said in an email exchange. “In this case, based on the record, we found a minor change to be appropriate (but rejected other calls for changes).” Besides, the official added, “it’s a ’screen’ and not a cap,” which meant there was “no need for either a public notice or a new order. This is the way the FCC has always done it since the cap sunset in 2003.”
Under the new spectrum screen standard, secondary competitive scrutiny would have been triggered in some 272 markets covered by the AT&T/T-Mobile deal, according to the FCC’s analysis. A telecom official said the old standards would have triggered secondary studies in about 190 markets. The FCC said that “the change was minor.”