Martin Order Would Keep M2Z from Building Free Wireless Network
FCC Chairman Kevin Martin circulated an order that would put an abrupt end to M2Z’s effort to build a free, nationwide wireless broadband network in the 2.1 GHz band. Martin has asked fellow commissioners for a quick vote. Meanwhile, M2Z put the FCC on notice that it will seek a writ of mandamus in federal court that would force the FCC to act on its petition. M2Z will tell the court that the FCC was statutorily required to make a public interest determination on its license application by May 5, 2007 but hasn’t issued it.
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The order would reject M2Z’s petition for forbearance and launch a proceeding on service rules and procedures for an auction. It’s similar to an order that Martin circulated but then withdrew in April (CD April 20 p1).
The new twist is that Martin’s office asked M2Z to pull its petition for forbearance based on concern that otherwise the FCC would have to cope with a requirement to act on the petition in coming weeks under Section 7 of the Communications Act, according to an M2Z filing to the commission. That provision creates a presumption in favor of “the provision of new technologies and services to the public” and requires the FCC to act within 12 months of an application being filed.
M2Z, led by former Wireless Bureau Chief John Muleta, refused to withdraw the petition. On Monday, M2Z filed an ex parte letter saying the company had been contacted by Erika Olsen, Martin’s acting legal adviser, warning that Martin planned to circulate an order denying M2Z’s application and getting the ball rolling on an auction. Olsen told M2Z that Martin read the law to mean that the FCC until Sept. 10 to act to satisfy the Communications Act and couldn’t extend the deadline on its own.
Last year, M2Z asked for 15-year licenses to build a broadband network in “underutilized, fallow and unpaired” spectrum in the 2155-2175 MHz band. The proposed network would be free, paid for in part through a premium, high-speed service.
Sources said Martin, while willing to negotiate, was displeased that M2Z refused to give the FCC more time to act. “This is not a fight John Muleta is going to win,” said an industry source. “If the FCC wants to deny a petition, they have numerous ways to do it.”
“Most people weren’t real optimistic that would go anywhere,” another industry source said. “Most carriers, at least, want it to die on the vine, which is where it seems to be headed.”