Order on AWS-3 Buys by Dish DEs Teed Up for FCC Vote
FCC Chairman Tom Wheeler said Thursday that he circulated an order addressing long-form applications of Northstar Wireless and SNR Wireless, the designated entities employed by Dish Network to indirectly capture the second-most AWS-3 spectrum of any player in the auction at discounted prices (see 1501300051). Wheeler dropped the news during a media briefing after the commission meeting and declined to say what he had recommended. Industry officials say they have been told the order is an Enforcement Bureau action, which they said could well be bad news for Dish and the two DEs.
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Industry lawyers, including former FCC officials, said the order likely only refers questions about possible collusion to the bureau for further investigation. The bureau could then potentially refer whatever it finds to the Justice Department. At least one outstanding question is whether the bureau will continue to work on the pending license applications while it undertakes its separate investigation, the officials said.
One former spectrum official noted that the Wireless Bureau has authority delegated by the FCC to dispose of license applications: “The Wireless Bureau’s task is to determine whether Dish has de facto, actual, control over Northstar, SNR, or both. If the Wireless Bureau concludes that Dish does have de facto control, and collusive bidding directed by Dish would likely be an indicia of control, one remedy would be to demand reimbursement for the $3 billion discount.” With bidding credits, the Dish-affiliated DEs were able to buy $13.3 billion worth of spectrum for $10 billion, saving more than $3 billion. Dish shares closed 3.7 percent lower Thursday at $66.72.
Wheeler also was asked about his decision Wednesday to push part of the auction rules to the commission’s Aug. 6 meeting (see 1507150058). “This is hard work,” he said. “There has never been a spectrum auction like this. … There are difficult issues to resolve that people will disagree on.” Wheeler compared getting the auction off the ground to the Wright Brothers’ first flight at Kitty Hawk, North Carolina. Delaying the vote provides the commission with an additional three weeks to hold discussions, he said. “We are working towards a solution that will make sure that there is a majority vote and when we bring it up that will happen."
NAB and public interest groups have led the fight to persuade the FCC to drop a proposal to place some TV stations in the “duplex gap” between uplink and downlink frequencies bought by carriers in the TV incentive auction (see 1507130054). Wheeler questioned whether broadcasters are of a single mind on any issue. “Can you use the blanket term broadcasters and attribute one opinion to them?” he asked. NAB members are “of a couple of minds,” he said.
Wheeler also said that the FCC in effect provided no new information when it released additional clearing target determination simulations Friday (see 1507150058). “There has been the ability since … December for anyone to run their own simulations,” he said. “The data that is necessary to run those simulations is out there. We’ve made it out there.”
Wheeler Thursday sought FCC action at the Aug. 6 meeting on two additional auction-related items addressing the technical standards for unlicensed services following the auction, the so-called Part 15 rules, and rules on the future use of wireless microphones, FCC officials said.
The Part 15 proposal would allow unlicensed devices to use TV spectrum previously off limits to them, providing technical rules permitting use of the guard bands, duplex gap and repurposed spectrum, as well as access to Channel 37, with geographic and other restrictions to protect medical devices that use the band and radioastronomy, officials said. The wireless mic report and order addresses licensed mics, officials said. The FCC will take up technical rules allowing the mics to share spectrum with TV white spaces devices in the 600 MHz band. The FCC is also proposing that the mics be allowed to use the 941-960 MHz band, as well as the 1.4 GHz and 7 GHz bands, generally on a shared basis.
"The Part 15 Report and Order will assure unlicensed spectrum is available in every market,” Wheeler said in a Thursday blog post. “The Wireless Microphones Comprehensive Report & Order will address the long term needs of wireless microphone users.” The items taken together are “important components of a suite of proposals that establish clear rules and protections for unlicensed devices as well as licensed wireless microphone devices in the Incentive Auction band as well as in other wireless bands where licensed wireless mics will gain additional access,” Wheeler said.