AT&T Wireless hasn’t proved it suffered from the issuance of 2 GHz licenses to mobile satellite service (MSS) providers, and thus lacks standing to appeal the decision, the FCC said in a brief to the U.S. Appeals Court, D.C. AT&T, in a petition for review in July, asked the court to look at whether assigning the 2 GHz band to MSS was the best use of the spectrum and asserting that the Commission should have auctioned it off under the Communications Act (CD July 10 p5). But the FCC said AT&T was asking the wrong question, saying the more appropriate question was whether the FCC properly had granted the authorizations under established rules: “This case is a licensing case, and its resolution does not turn on questions of spectrum use policy. With respect to the licensing issue presented here, the appellants have failed to show that the Commission’s issuance of the 2 GHz MSS authorizations was improper.” The company’s most relevant argument for an auction actually was one it already had presented to the court, the FCC said. AT&T had contended that “the Commission improperly ‘evaded’ the auction requirement by resolving the licensing issue before the [ancillary terrestrial component (ATC)] issue” while legally the Commission was obligated to create mutually exclusive license applications, triggering an auction. The argument wasn’t one of the issues AT&T presented before the FCC, the agency said. In fact, while the company had asked only that it defer a decision on licensing before deciding whether to reallocate the 2 GHz spectrum, the FCC said, now “appellants ask that the licenses be rescinded,” making the mutual exclusivity argument more relevant: “In any event, the argument is wrong on the merits. Appellants do not cite anything in the statute that remotely suggests a requirement that the Commission must seek to produce mutual exclusivity.” A separate statute even directs the FCC to use other methods to avoid mutual exclusivity, it said. AT&T has argued it has standing as a competitor, but the FCC said AT&T had said in the past that MSS was “so unviable that the spectrum should be devoted to another use entirely… It makes no sense to allow appellants to appear before the court as ‘competitors’ when their own theory of the case is that the MSS licensees will not provide a competitive service.” As for whether AT&T’s question whether the 2 GHz licensing order was consistent with FCC’s authorizing the use of ATCs, the Commission said the question wasn’t appropriate for this challenge and should be handled in a challenge of the ATC order. The “appropriate remedy would be reversal of the ATC Order and not the licensing decision,” the FCC said, saying the orders were consistent.
Wireless Spectrum Auctions
The FCC manages and licenses the electromagnetic spectrum used by wireless, broadcast, satellite and other telecommunications services for government and commercial users. This activity includes organizing specific telecommunications modes to only use specific frequencies and maintaining the licensing systems for each frequency such that communications services and devices using different bands receive as little interference as possible.
What are spectrum auctions?
The FCC will periodically hold auctions of unused or newly available spectrum frequencies, in which potential licensees can bid to acquire the rights to use a specific frequency for a specific purpose. As an example, over the last few years the U.S. government has conducted periodic auctions of different GHz bands to support the growth of 5G services.
With suitors lining up for AT&T Wireless, industry attention has turned to how the FCC is likely to review the first major wireless merger since it lifted the spectrum cap a year ago. As a legal matter, the Commission is expected to view transactions in the context of a national wireless market, sources said. How the FCC handles the first proposed combination among the 6 national providers is being watched closely for signs of how the agency will examine what could be a flurry of consolidation in the sector, industry observers said.
Congress isn’t expected to pass comprehensive legislation on communications issues this session, many sources said, but that doesn’t mean lawmakers won’t be busy in the communications realm. Most sources provided a laundry list of issues that would get at least some attention from lawmakers who return today (Tues.) for the 2nd session of the 108th Congress. While no large-scale bills are expected, Congress could pass legislation this year to restrict broadcast ownership, fund enhanced 911 (E911) and spectrum relocation, and renew the Satellite Home Viewer Improvement Act (SHVIA). But there’s likely to be a lot of talk on the Hill about communications issues, as VoIP, universal service fund (USF), broadcast decency and cable rates.
An FCC order released last week affirmed the agency’s authority to auction DBS spectrum. The Commission declined to adopt eligibility restrictions for licenses at 175 degrees W, 166 degrees W, and 157 degrees W and deferred a decision on eligibility at 61.5 degrees W. A decision on the available licenses at 61.5 degreesW will be included in a pending Wireless Bureau announcement on the auction. The bureau postponed auction 52 in June pending the decision (CD June 13 p11). When the Commission asked for comments on the pending DBS auction, it said prior decisions to adopt the ORBIT Act and DISCO 1 (which allowed U.S. satellite licensees to serve non-U.S. locations), did not prohibit it from conducting the auction. Northpoint filed comments that contended DBS was an international or global service, not “incidentally international.” The Commission said Northpoint claimed that the “conclusion that DBS is not an international or global satellite communications service subject to the ORBIT Act represents a ‘dramatic and unexplained reversal’ of Commission policy.” The FCC said the DBS licenses were assigned to the U.S. for providing a domestic service. “None of Northpoint’s arguments changes the fact that the channels and orbit locations we plan to license by auction were assigned to the U.S. because of their coverage of the U.S. alone… [or] that the licenses to be included… must be used to provide a service delivered almost exclusively to U.S. consumers,” the Commission said. It dismissed all of Northpoint’s arguments as without merit, including the assertion that certain scenarios would allow DBS licenses to provide international service. The Commission took issue with Northpoint’s characterization of the FCC’s concept of DBS as a “truly” international satellite communications service in DISCO 1: “Rather, in DISCO 1, the Commission concluded that it should not impose regulatory barriers on a licensee interested in providing DBS service outside the U.S. Specifically, DISCO 1 permitted DBS licensees to provide both domestic and international service without obtaining additional approval from the Commission.” There was no comment on the Western licenses at 175 degrees W, 166 degrees W, and 157 degrees W, the agency said.
The FCC Wireless Bureau announced last week the shifts in responsibilities among its staff members as part of its recent reorganization into 6 new divisions. A bureau spokeswoman said the legal advisers and deputy bureau chiefs generally had shifted the divisions they supported. The bureau chief’s office added Aaron Goldberger as a legal adviser to provide support to the Public Safety & Critical Infrastructure Div. (PSCID) and to coordinate with the FCC Office of Engineering & Technology. The bureau named Lauren Patrich as special counsel for media and outreach. It announced 2 reassignments in the chief’s office: (1) Chief Engineer Thomas Stanley will be responsible for wireless technology and engineering policy on licensing or sharing wireless services. (2) Chief Economist Walter Strack will be policy and technical adviser on economic issues concerning regulatory policy, spectrum policy and auctions. In other areas, the Bureau said: (1) Deputy Bureau Chief Catherine Seidel is supporting the bureau’s new Broadband Div. and the PSCID. (2) Deputy Bureau Chief Gerald Vaughan is supporting the Spectrum & Competition Policy Div. and the Spectrum Management Resources & Technology Div. (SMART). (3) Acting Deputy Bureau Chief Peter Tenhula provides support to the Mobility Div. and the Auctions & Spectrum Access Div. Tenhula also directs the agency’s Spectrum Policy Task Force. Margaret Wiener, chief of the bureau’s Auctions & Industry Analysis Div., becomes chief of the new Auctions & Spectrum Access Div. The new Broadband Div., which has taken on some policy areas that had been in other divisions, is headed by Joel Taubenblatt, who was deputy chief of the former Policy Div. and a legal adviser to the bureau chief. The Div.’s policy areas include Multipoint Distribution Service/ITFS, advanced wireless services, 70-80-90 GHz, Local Multipoint Distribution Service, 24 GHz and 18 GHz issues. D'wana Terry, who headed the previous iteration of the Public Safety Div., becomes chief of the new Public Safety & Critical Infrastructure Div. William Kunze is heading the Spectrum & Competition Policy Div., responsible for Spectrum Policy Task Force implementation, secondary markets. His division also will include competitive reviews of proposed transactions. Elsewhere, John Chudovan is heading the SMART Div., which covers all the bureau’s information technology, licensing support, auctions support and outreach functions.
Attention turned in recent months in the 800 MHz proceeding to the question of how to value spectrum at 1.9 GHz under a rebanding proposal by Nextel and others, FCC Wireless Bureau Chief John Muleta said after the Commission’s Thurs. agenda meeting. But he said that didn’t mean the agency had zeroed in on the “consensus plan” to mitigate interference to public safety at 800 MHz. Other FCC officials acknowledged they faced budgetary belt-tightening in 2004 and said a must-carry decision might be a way off.
Salmon PCS, which has financial backing from Cingular Wireless, outlined for the FCC last week a possible spectrum manager leasing arrangement the 2 companies were considering that would involve most of Salmon’s 45 markets. A Cingular official told us Fri. an agreement was in the exploratory stages. Talk of a deal follows the FCC’s adoption last year of rules on secondary markets for spectrum, allowing licensees to lease underused capacity (CD May 16 p1).
Rural telecom companies are uniquely positioned to provide wireless services in the vast majority of rural areas, parties said in comments filed with the FCC. They urged the Commission to adopt rules and policies that would provide opportunities for rural telephone companies and eliminate outmoded barriers to deployment of wireless broadband service. The comments came in response to a rulemaking the Commission began in Sept. (CD Sept 11 p6) asking how to promote spectrum-based services in rural areas.
In continued back-and-forth at the FCC on the 800 MHz proceeding, Nextel shot back at a CTIA filing earlier this month that argued that the “consensus plan” to realign that spectrum would violate the competitive bidding provisions of Sec. 309(j) of the Communications Act. Nextel accused the plan’s opponents of unleashing a “campaign of misinformation” in the last few weeks, “audaciously twisting the application of regulation to serve their myopic interest.” In its latest filing, Nextel argued that the FCC had full legal authority to approve the consensus plan, which also was backed by some private wireless groups, PCIA and the Assn. of Public Safety Communications Officials. The plan is designed to mitigate interference to public safety operations at 800 MHz and would involve reconfiguring parts of 700, 800 and 900 MHz. CTIA’s most recent criticism had focused on the part of the plan that would give Nextel a nationwide license for 10 MHz at 1.9 GHz as part of a spectrum swap for capacity it was giving up in other bands. CTIA raised concerns about the extent to which the proposal would run counter to Sec. 309(j), which outlined the principals for the FCC’s offering spectrum at auction and would circumvent the Commission’s standard license assignment process. “CTIA applies inapposite precedent, distorts the comparative value of Nextel’s current licenses and proposed replacement spectrum and ignores the enormous societal benefits that would result from the consensus plan,” Nextel told the FCC. “The Commission should reject this last-ditch effort, and should instead move expeditiously to adopt the consensus plan in its entirety.” Nextel, a member of CTIA, told the Commission that this was not the first time the group had weighed in at the 11th hour in a spectrum proceeding to raise new arguments. Nextel cited the mobile satellite service rulemaking, in which CTIA argued late in the proceeding about potential interference to 1.9 GHz PCS operations. As for the 800 MHz proceeding, Nextel said it could implement the consensus plan and modify its licenses without triggering the competitive bidding requirements of Sec. 309(j). Nextel contended that provision applied only to the awarding of initial licenses. Instead, it said, the consensus plan would be modifying only Nextel’s already existing licenses. It said the FCC had authority to assign that spectrum to Nextel as a license modification under Sec. 316 of the Act. Nextel said important public interest provisions underlay the competitive bidding provisions of Sec. 309. “In the case of the 800 MHz proceeding, however, the compelling public interest benefits that would result from the consensus plan outweigh the public interest in spectrum auctions,” Nextel said. Nextel Vp-Govt. Affairs Lawrence Krevor said: “The consensus plan will eliminate the dangerous problem of public safety radio interference and we look forward to CTIA rallying to the cause.”
The FCC is poised to take up a proposal and order at today’s (Wed.) agenda meeting on cognitive radios in a move that some developers hope ultimately will create more incentives to deploy the technology. One helpful outcome would be for the items to more clearly define what cognitive radio technology was vs. software-defined radios, said Mike Chartier, Intel Corporate Technology Group dir.-regulatory policy and regulatory chmn. of the Software Defined Radio Forum.