FCC Fights Appeal of NTCH Petition on Dish Use of 2 GHz Band
NTCH isn't an AWS-4 band licensee or operating in adjacent spectrum that could face interference from Dish Network using the lower AWS-4 band for downlinks rather than uplinks, so it doesn't have standing to challenge the FCC waiving some technical…
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rules that applied to Dish's AWS-4 licenses, the agency said Wednesday in a U.S. Court of Appeals for the D.C. Circuit motion to dismiss (in Pacer, docket 18-1242). NTCH sued after the agency in August upheld a Wireless Bureau waiver request it was appealing (see 1808160065). NTCH claims that waiver thwarted its plans to participate in the H-block option, but it had decided not to take part in the auction before the bureau granted the waiver request. D.C. Circuit precedent is that a general complaint about the government doesn't qualify for Article III standing, the FCC said. NTCH counsel Don Evans of Fletcher Heald emailed that the motion was expected since the FCC attacked its mandamus petition previously on standing grounds. He said the FCC acknowledged that NTCH has standing to challenge H-Block auction procedures and that the waiver and the extension of time for Dish to construct AWS-4 facilities were explicit quid pro quos for Dish's payment of $1.5 billion in the H-Block auction. That deal gave Dish enormous advantages not enjoyed by any other auction participant and makes the waiver/extension integral to the H-Block auction process and challengeable by a thwarted bidder, he said. The court granted a Dish motion (in Pacer) to intervene Monday.