AT&T Wireless hasn’t proved it suffered from the issuance of 2 GH...

AT&T, in a petition for review in July, asked the court to look at whether assigning the 2 GHz band to MSS was the best use of the spectrum and asserting that the Commission should have auctioned it off under the Communications Act (CD July 10 p5). But the FCC said AT&T was asking the wrong question, saying the more appropriate question was whether the FCC properly had granted the authorizations under established rules: “This case is a licensing case, and its resolution does not turn on questions of spectrum use policy. With respect to the licensing issue presented here, the appellants have failed to show that the Commission’s issuance of the 2 GHz MSS authorizations was improper.” The company’s most relevant argument for an auction actually was one it already had presented to the court, the FCC said. AT&T had contended that “the Commission improperly ‘evaded’ the auction requirement by resolving the licensing issue before the [ancillary terrestrial component (ATC)] issue” while legally the Commission was obligated to create mutually exclusive license applications, triggering an auction. The argument wasn’t one of the issues AT&T presented before the FCC, the agency said. In fact, while the company had asked only that it defer a decision on licensing before deciding whether to reallocate the 2 GHz spectrum, the FCC said, now “appellants ask that the licenses be rescinded,” making the mutual exclusivity argument more relevant: “In any event, the argument is wrong on the merits. Appellants do not cite anything in the statute that remotely suggests a requirement that the Commission must seek to produce mutual exclusivity.” A separate statute even directs the FCC to use other methods to avoid mutual exclusivity, it said. AT&T has argued it has standing as a competitor, but the FCC said AT&T had said in the past that MSS was “so unviable that the spectrum should be devoted to another use entirely… It makes no sense to allow appellants to appear before the court as ‘competitors’ when their own theory of the case is that the MSS licensees will not provide a competitive service.” As for whether AT&T’s question whether the 2 GHz licensing order was consistent with FCC’s authorizing the use of ATCs, the Commission said the question wasn’t appropriate for this challenge and should be handled in a challenge of the ATC order. The “appropriate remedy would be reversal of the ATC Order and not the licensing decision,” the FCC said, saying the orders were consistent.