TR Daily CBA: Unilateral FCC C-Band Action ‘Legally Perilous’
Tuesday, January 14, 2020

CBA: Unilateral FCC C-Band Action ‘Legally Perilous’

The C-Band Alliance (CBA) warned the FCC today that it would be “legally perilous” for the agency to repurpose 280 megahertz of the 3.7-4.2 gigahertz C-band without the involvement of the CBA, and it said that alliance members should receive “fair” incentives to cooperate.

Last November, FCC Chairman Ajit Pai announced that he plans to pursue an FCC-run auction of 280 MHz of the C-band rather than the private sale pushed by the CBA (TR Daily, Nov. 28, 2019). FCC officials have said that Mr. Pai plans to ask his colleagues to vote on an item early this year and that the Commission plans to commence an auction of the spectrum by the end of 2020.

The CBA said in an ex parte filing today in GN docket 18-122 that it “supports Chairman Pai’s decision, but notes that it does not change the monumental task of transitioning C-band spectrum from satellite transmissions to 5G mobile services quickly and efficiently. Speed is of the essence, and the CBA—fairly and properly incentivized—is uniquely positioned to enable it.

“Failure to involve the CBA in the transition of the C-band would be legally perilous,” the CBA added. “Unilateral authorization of new terrestrial mobile operations in any significant portion of the C-band would constitute an unlawful basic and fundamental change to the authorizations held by the members of the CBA. The Communications Act does not give the FCC authority to impose fundamental, unilateral changes on existing licenses, and the Takings Clause of the U.S. Constitution confirms that the FCC must obtain the cooperation of the members of the CBA through fair and proper incentives before authorizing new terrestrial mobile operations in the C-band. Given the importance of 5G to U.S. economic and security interests, delay is not an option. With fair incentives, the CBA can—and will—quickly and efficiently clear 280 MHz of C-band spectrum for 5G operations.”

“As previously noted, an accelerated transition has real and extraordinary economic value, and as the driving force behind an accelerated transition (and the bearer of the costs and risks associated therewith), the CBA should be able to recognize a fair portion of that value in the form of acceleration payments,” the filing added. “Compensatory payments based primarily on the capital costs of clearing spectrum would be woefully insufficient—they would not recognize the asymmetry between benefit (accruing to society as a whole) and cost and risk (borne by the members of the CBA) and would not fairly incentivize the members of the CBA to quickly clear the C-band.”

“In sum, the FCC may not authorize new terrestrial mobile operations in any significant portion of the C-band without first obtaining the cooperation of the members of the C-Band Alliance,” the filing said. “Indeed, if the FCC countenanced a unilateral license change here, it would have far reaching implications for every other license holder who could find their spectrum holdings similarly reduced the next time there is a technology or policy change.”

The CBA also stressed that “member companies have already done significant work and are uniquely positioned to do the remaining work required for clearing to begin. Such work includes detailed conversations and planning with incumbent C-band users aimed at ensuring content companies, TV and radio broadcasters, MVPDs, private video and data networks, mobility users and U.S. government networks can continue to rely on the C-band for mission critical content distribution, which most have indicated is a critical business requirement. To that end, the CBA has developed a detailed clearing coordination and implementation plan and voluntarily committed to taking steps (if charged with coordination of spectrum clearing) to provide customers uninterrupted service before, during, and after the transition of 280 MHz of C-band spectrum to 5G operations.”

Meanwhile, Sen. John Kennedy (R., La.) has asked the FCC to keep him apprised of auction developments in its C-band proceeding. Sen. Kennedy opposes incentive payments to satellite companies to repurpose the C-band.

“As the Federal Communications Commission (FCC) works to clear C-Band spectrum through a public auction, I write to request that you keep me apprised of any and all developments in respect to the FCC’s auction plans and subsequent auction schedule. Additionally, I also ask that I be given notice of any proposal the FCC considers in regards to compensation for the satellite companies currently operating within the C-Band,” Sen. Kennedy said in a letter dated Thursday and released yesterday. —Paul Kirby, [email protected]

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