CBA to Propose Separate Fee to Compensate Incumbents Giving Up Spectrum
The C-Band Alliance told the FCC the agency has “broad authority under Title III of the Communications Act” to require companies buying licenses in a C-band auction to pay for clearing the band as a condition of their participation. CBA plans to file an analysis by Brattle Group economist Coleman Bazelon detailing how the FCC could use an accelerated clearing fee paid by C-band auction winners to satellite operators that have to relocate. Commissioner Jessica Rosenworcel told a Senate Committee Wednesday authority isn’t clear (see 2001150067). An order is expected in February or March (see 2001090021).
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“The crucial question is how can the FCC structure acceleration payments to get us to voluntarily waive our legal rights and agree to start clearing well before the beginning of an auction,” said CBA Executive Vice President-Advocacy and Government Relations Peter Pitsch in an interview. “Most people who have commented on this have said there should be some payment of some sort, across the political spectrum.” The commission didn't comment.
The key issues are “how can it be structured so it's legal” and “how should it be structured on a policy basis” given “the larger public interest,” Pitsch said. The coalition's filings could help the FCC structure an approach, he said. Pitsch said the economic analysis considers the value of accelerating C band availability and providing fair compensation to incumbents for making the spectrum available more quickly.
Satellite companies would be paid based on the market value of making the spectrum available within 18-36 months, as a separate fee from what providers bid in an FCC auction, Pitsch said. Government still gets paid, he said: “That means there’s no diversion, there’s no 309(j) problem, there’s no miscellaneous receipts problem. … We’re convinced that the commission could defend this as not creating any diversion. Therefore, it would be legal and would be in the public interest.”
“Courts have recognized that Title III of the Communications Act ‘affords the Commission broad authority to manage spectrum in the public interest,’” CBA filed, posted Thursday in docket 18-122. “The Commission also has an ample basis to determine … that an accelerated clearing payment equal to aggregate winning bids of a C-band spectrum auction license would reflect a conservative estimate of the fair market value of accelerated clearing for such license.” The FCC has used its Title III authority “through the Emerging Technologies framework when, in its judgment, the highest valued use of spectrum necessitates spectrum reallocation and relocation of incumbents,” the group said.
The record “establishes a broad consensus among relevant stakeholders that incumbent FSS [fixed satellite service] operators should receive fair payments above clearing costs for rapidly clearing the lower 300 MHz of the C-band,” CBA said. Congress gave the FCC specific authority to hold the TV incentive auction, but that doesn’t alter the commission’s “broad authority under Title III, including its authority to adopt bidding qualifications and license conditions requiring payment obligations by new licensees to incumbent satellite operators,” CBA said.
CBA also disputed an October analysis by AT&T, commissioned from CommScope, in a second filing. That “inappropriately relies on the company’s current base station deployment, which ignores any future densification of base stations, and thereby vastly understates the interference risk to receiving FSS earth stations,” CBA said: “ICBA has proposed service rules that would allow future terrestrial operators substantial flexibility in siting and operating their base stations while providing protection to receiving FSS earth stations in a more realistic, dense 5G deployment environment.” AT&T declined comment.
Aviation interests stressed importance of protecting the 4200-4400 MHz band from harmful interference, in meetings with Commissioner Mike O’Rielly and aides to Commissioners Brendan Carr, Jessica Rosenworcel and Geoffrey Starks. “Given that the radio altimeter is used by more than 50,000 passenger planes, helicopters, and general aviation aircraft, they emphasized that any new regulatory framework for 5G in the 3700-4200 MHz band must ensure the protection of radio altimeters from harmful interference by requiring that flexible use operators implement sufficient mitigation measures,” said Aviation Spectrum Resources, the Air Line Pilots Association and Helicopter Association.