The FCC and wireless and satellite industry entities asked the U.S. Court of Appeals for the District of Columbia Circuit today to reject small satellite operators’ (SSOs’) request to stay implementation of the FCC’s C-band order pending judicial review of their appeal of the item (TR Daily, June 17).
Last week, the Wireless Telecommunications Bureau denied a petition filed by the SSOs for a stay of the order pending judicial review (TR Daily, June 10).
The SSOs—ABS Global Ltd., Empresa Argentina de Soluciones Satelitales S.A. (ARSAT), and Hispamar Satelites S.A. and Hispasat S.A.—filed their legal challenge last month (TR Daily, May 4). Also challenging the FCC in the proceeding are PSSI Global Services LLC, a satellite transmission company, and SES Americom, Inc. (TR Daily, May 26). The cases have been consolidated.
In their legal challenge, the SSOs have complained that the FCC shortchanged them by refusing to compensate them for their revoked spectrum rights and authorizing about $15 billion in payments, including $9.7 billion in accelerated relocation funds, to their larger competitors (TR Daily, Feb. 28).
The SSOs filed an emergency motion for stay pending appeal and an immediate administrative stay that would be in effect until the court rules on the stay pending appeal.
“The Small Operators are not entitled to a stay pending review,” the FCC said in a filing today in “ABS Global Ltd., Empresa Argentina de Soluciones Satelitales S.A., Hispamar Satélites S.A., and Hispasat S.A. v. FCC” (case nos. 20-1146 and 20-1147). “First and foremost, they cannot show that they will suffer imminent and irreparable harm without a stay. By the terms of the Order, no satellite incumbent will be required to do anything until the deadline for ceasing operations in the lower 300 MHz arrives in December 2025—and it will take no effort for the Small Operators to clear that spectrum, because they are not currently using it to serve any U.S. customers.
“Perhaps aware that these facts counsel decisively against a stay, the Small Operators contend that if the multi-year transition is allowed to begin, it could at some unspecified point become too difficult to unwind. But none of the Order’s initial transition measures, which will extend over the next year or more, would harm the Small Operators in any way,” the FCC added. “And there is ample time for the Court to consider and decide this case before any payments are made to any satellite operator. The Small Operators concede as much, asking in the alternative (Mot. 3) that the Court simply expedite this appeal ‘so that it can be decided prior to’ December 8. The Commission stands ready to brief the appeal on any timetable convenient to the Court. But in any event, both this Court and the Commission would have full power to ensure that the Small Operators are made whole in the unlikely event that they ultimately prevail on appeal.”
The FCC continued that “[t]he low likelihood the Small Operators would prevail is another reason to deny a stay. None of their arguments comes close to overcoming the highly deferential review that applies to the Commission’s spectrum-management decisions. The Commission’s actions fall comfortably within its broad power to modify licenses by migrating licensees from one spectrum range to another where they will be able to continue providing comparable service. The Small Operators have no right to compensation for lost spectrum when they will be able to continue serving any business with the spectrum they retain. And the Commission reasonably supported its policy decisions as to the nature and amount of relocation payments and accelerated relocation payments.
“Finally, the public interest and the equities weigh heavily against a stay,” the Commission added. “The United States faces a pressing public need to make new spectrum available quickly to keep pace with skyrocketing demand for wireless services and to ensure American leadership in the global race to deploy 5G. Speed is essential both to meeting that demand and ensuring that the United States does not cede critical ground to China in 5G deployment. Any delay, even a short administrative stay, would cause significant harm. The record includes studies estimating that every year of delay in making C-band spectrum available would reduce consumer welfare by billions of dollars, and any delay in auctioning this spectrum would likely reduce recovery to the U.S. Treasury as well. Incumbent satellite operators, terrestrial wireless companies, and equipment manufacturers all represented to the Commission that they have already begun taking substantial steps needed to meet the current transition schedule and that any delay would cause significant disruption.”
In a joint filing today, CTIA, AT&T, Inc., and Verizon Communications, Inc. also asked the court to reject the stay pending appeal and the administrative stay.
“The auction is expected to generate billions of dollars in revenues for the Treasury and many more billions in benefits to the U.S. economy. It will also put this spectrum (currently underutilized by satellite operators) to its best and highest use for next-generation ‘5G’ wireless services. Because appellants do not come close to satisfying the demanding standards for a stay pending appeal, the Court should deny their request for this extraordinary equitable relief,” the wireless entities said. But they said they supported the SSOs’ request for an expedited decision by the court so it rules before the auction starts on Dec. 8.
Among other things, the wireless entities also said that the “appellants have no likelihood of success in challenging the FCC's reasonable conclusion that ‘any reduction in spectrum access rights here will not [affect] a “fundamental change” for these companies under section 316 precedent.’”
In another filing, SES said it also opposes the SSOs’ stay request.
“Petitioners’ challenge is about money – ‘acceleration payments’ designed by the FCC as part of a program to facilitate the expeditious deployment of vital 5G communication networks in a key band of electromagnetic spectrum called the ‘C-Band,’” SES said. “Petitioners, a small group of international satellite operators known as the SSOs, are not eligible for these payments because they did not provide any covered C-Band satellite services in the United States as of the relevant deadline. But that has not stopped them from lunging for a piece of the action: first by unsuccessfully seeking a stay before the Commission, which roundly rejected their baseless arguments, and now by reviving the same tired arguments in the instant Motion.
“The Court should deny the Motion for the same reasons articulated by the Commission: the C-Band R&O was amply justified under the Commission’s broad authority in this core area, the alleged economic harms to Petitioners are illusory and in any event not irreparable, and the public interest would be greatly disserved by this Court’s stepping in to derail an auction that will bring enormous benefits to consumers and the American economy,” SES argued.
In a related development today, the bureau established a pleading cycle on another stay request pending judicial review filed yesterday by PSSI. Comments are due June 25 and replies are due June 30 in GN docket 18-122. —Paul Kirby, [email protected]
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