Telecom firms find plenty of loopholes for FCC's auction authority

Some of the nation's top telecom companies – including AT&T and Verizon – offered federal regulators suggestions on how to bypass a lapse in the FCC's auction authority.

However, there was plenty of disagreement about what the agency should do if it does begin to dole out spectrum licenses through such loopholes.

The situation highlights the complex regulatory landscape for spectrum licenses in the US, as well as ongoing political deadlock in Washington. It also helps to shine a light on a widening debate between the cellular and cable industries over the future of spectrum management.

An ongoing problem

At the heart of the issue is the FCC's Congressional authority to conduct spectrum auctions. More than a year ago, Congress declined to renew the FCC's auction authority, in part because of an ongoing dispute over what to do with the lower 3GHz band. That has effectively hamstrung the FCC in its ability to conduct spectrum auctions or issue new licenses.

So far, the FCC's lack of authority hasn't affected many companies in the telecom industry. T-Mobile is the only high-profile company to complain because it wasn't able to obtain the licenses it won during the FCC's Auction 108, which occurred while the agency still had auction authority. However, T-Mobile managed to take the issue directly to Congress, shepherding legislation that directed the FCC to release its auction winnings without regaining its broader auction authority.

Now, as the situation stretches into its second year, the FCC is starting to look for solutions beyond Congress.

"This Public Notice seeks comment on how the Commission should fulfill its responsibility to make spectrum resources available for use in the public interest, in light of the ongoing lapse of the Commission's auction authority," the FCC wrote in a new April proceeding.

The agency mentioned several different spectrum bands it might consider, including 600MHz, 700MHz, 800MHz, AWS-3, PCS, BRS and MVDDS. The agency dubbed such spectrum "Inventory Spectrum."

In its proceeding, the FCC asked for comment on questions including whether it could approve spectrum sharing scenarios, issue site-based licenses, lease spectrum licenses or release spectrum under its existing "Special Temporary Authority" (STA) regime.

The solutions

In new filings to the FCC, some of the nation's biggest wireless network operators urged the FCC to use its STA process to release spectrum.

"Where needed, special temporary authority (STA) licenses may be a rational vehicle for making spectrum available from the Inventory Spectrum pending reauthorization of the agency's auction authority," wrote CTIA, the primary lobbying association for big US wireless network operators.

Others agreed. "Rather than introducing sub-optimal access regimes in bands that already have settled licensing and technical rules, the Commission could rely on its special temporary authority to grant access to Inventory Spectrum licenses on a temporary basis," Verizon wrote.

That's noteworthy because T-Mobile suggested exactly that last year. At the time, the FCC said it was not legally able to release T-Mobile's auction winnings, thus forcing T-Mobile to take the issue directly to Congress.

"Granting STAs can occur promptly," T-Mobile wrote to the FCC this week. "The Commission already has well-established rules and processes to issue STAs. Wireless carriers are also familiar with those processes. That means Inventory Spectrum can be made available quickly, and consumers can obtain the benefits of the additional capacity as soon as possible."

To share or not to share

But a number of entities disagreed over how the FCC should release any new spectrum licenses. For example, the NCTA urged the FCC to release spectrum under "coexistence-based frameworks" rather than "exclusively licensed frameworks." The NCTA primarily represents the nation's big cable companies, like Charter Communications and Comcast. 

That suggestion runs directly against the wishes of the big wireless operators.

"Standing up sharing frameworks or dynamic systems, or restricting eligible use to non-exclusive, site-based licensing in Inventory Spectrum would be time consuming, complicated, inefficient, and result in pockets of spectrum subject to different rules that would lower investment in these important bands and decrease their value," Verizon wrote. "These options are inferior to assigning Inventory Spectrum by auction."

CTIA, AT&T and T-Mobile echoed that position.

The debate between cable companies and wireless operators is playing out across other venues as well. As Light Reading has previously reported, lobbyists backed by the cable industry are trying to prevent 5G providers from obtaining more spectrum in the lower 3GHz band.

Part of the cable lobby's goal is to encourage the use of spectrum sharing regimes rather than the dedicated, licensed spectrum scenarios. By doing so, the cable industry may be hoping to prevent the expansion of fixed wireless access (FWA) services across the US.

A variety of viewpoints

Big cable and wireless companies aren't the only ones weighing in on the spectrum sharing issue. For example, Federated Wireless urged the FCC to use spectrum-management tools like the ones it sells for the 3.5GHz CBRS band.

And EchoStar, the parent company of Dish Network, urged the FCC to release spectrum to smaller companies. "Non-incumbent carriers (more specifically, every carrier other than AT&T, T-Mobile, and Verizon) should have a 'right of first refusal' to all Inventory Spectrum," the company wrote.

EchoStar also called on the FCC to release spectrum in the 12GHz band – a longtime goal for Dish.

Finally, Florida Power & Light Company, a utility company, urged the FCC to release spectrum in a way that would allow smaller companies to participate on equal footing to bigger companies. The utility also called for the FCC to release part of the 5GHz band for shared use, including the portion the agency may allocate to drones and other uncrewed aircraft systems (UAS).