Dish and Sprint Settle Fight Over BAS Relocation Costs
Dish Network and Sprint Nextel settled a years-long legal battle over the cost of relocating broadcast auxiliary spectrum from the 2 GHz band, the companies said Friday. The confidential settlement should help Dish in its pursuit of FCC approval for the company’s purchase of DBSD and TerreStar, which control a combined 40 MHz of S-band spectrum, said industry executives. Dish is buying the companies out of bankruptcy. Other wireless filers in the proceeding pointed to procedural concerns.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
The BAS relocation costs were a major point of Sprint’s filings in the Dish acquisition proceeding and, as a result of the settlement, Sprint withdrew its request for conditioned approval of the deals, removing a major obstacle, said consultant Tim Farrar. MetroPCS, which asked to see additional business plans related to the deals, is now the only filer opposing the deals, noted a lawyer watching the case. Sprint was seeking reimbursement of about $220 million.
The resolution of the Sprint claims means the FCC could potentially move quickly on transfers of control, while leaving the more-complex issues of the waiver until later, said Farrar. Some variables, including Congressional consideration of spectrum fees or incentive auctions for MSS spectrum, remain unclear within the waiver proceeding. The FCC would likely prefer to get clarity on some of those issues before it rules on the waiver requests, Farrar said. Approval of the transfers of control ahead of the waivers may force a difficult decision for Dish because Dish would have to close on the deals within 60 days of grant under commission rules, said an industry lawyer. Dish then would need to decide if it wants to complete the deals with the waiver requests -- and its ability to use the 2 GHz band for terrestrial-only service -- still pending. The lawyer doesn’t expect to see an FCC ruling in either proceeding before the end of the year.
"We are pleased that DISH and Sprint have been able to resolve all outstanding issues related to Sprint’s relocation of certain incumbents from the 2000-2020 MHz band, and that Sprint has withdrawn its petitions to deny our license transfer and waiver applications,” said Dish in a written statement. “We believe that the record before the FCC demonstrates that expeditious approval of the license transfers and waivers will be a win for consumers, competition and American jobs.” Sprint also said it was glad to resolve the dispute.
The fight between Sprint and the MSS companies stems from the carrier’s clearing of BAS spectrum and expectation of reimbursement for clearing fees by users of the spectrum, based on the FCC’s emerging technology policy. The BAS clearing was part of the 800 MHz relocation. Dish took up the Sprint claims as part of deals to buy TerreStar and DBSD and is appealing a 2010 FCC declaratory ruling that defines relocation expense reimbursement policy. The U.S. Court of Appeals for the D.C. Circuit recently heard oral argument in that case (CD Oct 17 p6). While the settlement doesn’t necessarily put that appeal to bed, the appeals court could say the issue is now moot, said the industry lawyer. The FCC declined to comment.
Reply comments on the Dish proceedings were due Thursday and CTIA said it would like to see the 2 GHz band put in play for wireless broadband, but continues to have concerns about the commission’s adoption of the waiver requests by Dish, absent a broader rulemaking. “The record in this proceeding ... affirms CTIA’s position that spectrum in the 2 GHz range will play an important role in addressing the spectrum crunch facing the wireless industry,” the group said (http://xrl.us/bmhu6m). “However, Dish’s waiver requests would have the Commission bypass consideration of critical issues involving the 2 GHz band, potentially precluding full and efficient use of both the MSS bands and adjacent spectrum.” Dish “posits that its waiver requests are ‘limited to the facts and circumstances of the 2 GHz MSS band,'” CTIA said: But granting the Dish waivers could “impact full and efficient use of the H Block, J Block, and AWS-3 bands highlighted by the Commission in its 2 GHz proceeding, as well as additional federal spectrum that may become available."
AT&T raised similar concerns in reply comments (http://xrl.us/bmhu5n). Any changes to how the 2 GHz band is allocated should be made through a rulemaking rather than on a “ad hoc basis” as Dish asks, the telco said. “The action the Commission is asked to take would essentially convert the S band from satellite spectrum with an ancillary terrestrial component to far more valuable terrestrial mobile broadband spectrum with an ancillary satellite service condition,” the carrier said. “Under these circumstances, it would be contrary to the public interest to grant licenses for such repurposed spectrum without recovering for the public a portion of the increased spectrum value.”