Factions, Disagreements Abound in C-Band Rights Question

The C-Band Alliance got pushback from multiple parties on its band-clearing plan. Congressional intent, precedent and Communications Act Section 309(j) are clearly against a private auction or sale, said New America's Open Technology Institute, saying the CBA proposal would exclude smaller ISPs and new entrants. OTI said that approach also would incentivize incumbent licensees to resist giving up or sharing unused spectrum unless paid by the FCC. The group said there are numerous examples of the agency reducing or changing the frequencies used by a licensee, and urged an end to full-band, full-arc coordination for the 3.7-4.2 GHz band.

The Competitive Carriers Association said giving satellite operators authority for allocating the 3.7-4.2 GHz band "contravenes a number of basic Constitutional and administrative law requirements." The Dynamic Spectrum Alliance also called the private auction approach bad policy and not legally supported, as is full-band, full-arc coordination.

Google also opposed full-band, full-arc coordination and said earth station operations should get as much protection as needed to allow delivery of satellite signals but not beyond that. America's Communications Association backed the joint proposal with the CCA and Charter Communications that ACA said would provide at least 370 MHz for 5G (see 1907020061). Charter said compensating earth station operators for transitioning to fiber delivery of content also would help that maximization.

CBA said compensation for band clearing would also be an incentive for licensees in other bands to also seek ways of using their spectrum more efficiently so some could be made available for other services. It said receive-only earth stations have no independent interference protection because they don't transmit signals. The alliance said an FCC effort to take back C band without consent of the licensees would face statutory and constitutional limits on authority. It said the Communications Act and the Constitution's Takings Clause let the FCC modify transmission licenses only if it's in the public interest and that change isn't "fundamental." It said an incentive auction with receive-only earth stations "plainly is unlawful" since those stations aren't licensed.

On meetings with officials including Wireless Bureau Chief Donald Stockdale, Office of Engineering and Technology Chief Julius Knapp and Office of Economics and Analytics acting Chief Giulia McHenry, the CBA said it argued that transitioning earth stations to fiber would be "enormously complex ... lack the reliability of C-band satellite distribution, and would take a decade or more to complete, costing the U.S. economy tens of billions of dollars." It said designing and planning such a network would take 24 months, with buildout even longer.

Satellite operators have enforceable rights to operate free from interference, and deciding otherwise would overturn decades of FCC precedents, the Satellite Industry Association said. The Wireless ISP Association said it's long-held agency precedent that receive-only earth stations don't have license rights under Title III of the Communications Act, and their registration rights aren't "a sweeping grant of authority" to use the C-band spectrum to transmit, so the agency has wide latitude to change receive-only earth station registrations. Arguing earth station registrants have equal C-band rights as satellite licensees, ACA said receive-only earth stations are subject to registration not because they have less spectrum protection but because other spectrum users don't need to be protected from them.

There's "no magic loophole" in satellite licensing whereby the FCC could end C-band satellite service without impeding the legal rights of those satellite licensees, satellite operators ABS Global, Hispasat and Claro said. They said satellite operators' rights don't mean earth station operators shouldn't be incentivized for a C-band transition, and commission precedent backs that. The companies said those incentives become even more important if the FCC opts to reallocate more than 200 MHz of the band. They said both the CBA and T-Mobile proposals have fatal flaws that need addressing -- CBA's including not incentivizing earth station operators and not providing any payment sharing to taxpayers, T-Mobile's including that its proposed reverse auction doesn't let satellite operators give up spectrum voluntarily.

Verizon said T-Mobile's auction plan is contrary to FCC incentive auction authority. It said ABS and the others are pushing for being included in compensation from band clearing, but the FCC can impose modifications to their U.S. market access grants without mandatory compensation. T-Mobile also argued satellite licenses won't require modification due to terrestrial use of the band, so decisions in this proceeding don't need to be driven by legal requirements to protect satellite operators from harmful interference. The carrier said the agency has been clear it has authority to do an incentive auction where satellite operators and earth station users compete in a reverse auction.