Draft Order On Dish AWS-4 Rules Doesn’t Limit Transferring Spectrum

The draft order sets an interim buildout timeline at 40 percent of the population covered within four years and a final buildout to 70 percent of the population covered within seven years, officials said. The terrestrial authority in an economic area will terminate if the final buildout requirement isn’t met in that economic area, an official said. If Dish fails to meet the interim, then it must accelerate the final buildout, the official said. The licensee wouldn’t lose its nationwide license if it fails to meet the final buildout in a particular economic area, the official added.

The officials said the OOBE limits will remain at what the commission proposed in the NPRM. The rulemaking notice proposes that for operations in the 2000-2020 MHz band, the power of emissions between 1995 MHz and 2000 MHz will be “attenuated below the transmitter power (P) by at least a value as determined by linear interpolation from 70 + 10 log (P) dB at 1995 MHz to 43 + 10 log (P) dB at 2000 MHz” (http://xrl.us/bm5d3d). The OOBE limits are pretty run of the mill, another official said.

The second official also said a vote is still expected before year-end. It appears the commissioners are trying to get the vote done as quickly as possible, the official said. If it doesn’t get done in the next couple of weeks, it'll definitely go on the December meeting agenda and Chairman Julius Genachowski will force a vote by the end of the year, the official said.

A separate NPRM to auction the H block circulated this month along with the AWS-4 draft order (CD Nov 21 p8). It focuses mainly on the lower 5 MHz portion of the H block, which is adjacent to PCS spectrum, the first official said. The upper 5 MHz of H block is adjacent to AWS-4.

Dish urged the commission, in several of its ex parte filings, to avoid placing stringent out-of-band emissions limits on its frequencies and to avoid what it has called predetermining rules governing the H block. The commission can’t be driven “solely by a desire to maximize future H block auction revenues in the future H block rulemaking proceeding, or in how it finalizes the AWS-4 technical rules in relation to possible future H block services,” Dish said in its most recent ex parte filing (http://xrl.us/bn3rze).

"In arguing that the commission should destroy the value of the H block, Dish is seeking to take a public asset potentially worth billions of dollars and turn it into a private windfall,” Justin Cole, an FCC spokesman, said in an email.

Dish invested more than $4 billion in risk-based capital and stands ready to invest billions more to provide American consumers with an innovative competitor in the wireless space, said Jeff Blum, Dish senior vice president. “This is not a windfall; it’s a venture where success is by no means assured,” he said in an email. “While we remain ready to work with the commission, we urge it to consider the sacrifices its current approach to the H Block means for spectrum, jobs and investment.” Dish’s approach does not destroy H Block, he added: On the contrary, “it promotes a successful H Block auction and puts us on a course to invest billions and create tens of thousands of jobs."

The transferability and leasing conditions put on LightSquared likely gave others the impression that similar limits would be placed on the Dish proceeding, said Paul Gallant, telecom analyst with Guggenheim Partners. Early on, there was some thought that the FCC might impose aggressive windfall conditions, “but I think the chairman just decided that getting the spectrum into the market as quickly as possible was the best approach,” he said. “The commission is viewing Dish’s 5 MHz limitation and its buildout schedule as its giveback to the public for the step-in spectrum value. ... I don’t think this chairman felt going beyond that was needed, particularly given that the 5 MHz limit will generate revenue for first responders from the H Block auction.”

It’s better for the public to have more spectrum available for mobile broadband, but the order’s lack of transferability restrictions could backfire, said Michael Calabrese, director of the New America Foundation’s Wireless Future Project. The draft “could quite easily lead to much less competition in the mobile broadband market than we currently have,” he said. “If granting this enormous subsidy of free mobile broadband spectrum to Dish ends up in a sale of the spectrum to AT&T or Verizon [Wireless], consumers will end up worse off than they are today.” New America, Public Knowledge and Free Press will continue to urge the FCC to establish a “use it or share it” license condition, Calabrese said. Until the licensee begins offering the terrestrial service, “the fallow” mobile satellite service spectrum “should be available through the TV bands database,” he added. “And other companies that could use it in the meantime.”