MSS S-Band Auction Authorization Likely, But May Be Moot
Congress seems likely to eventually pass incentive auction authority for mobile satellite service S-band spectrum, though the issue may be moot once Dish Network takes control of the spectrum, said industry executives. While there are several pieces of legislation in Congress which differ between authorizing general incentive auction authority or specifying MSS spectrum, either way would have the effect of giving the FCC the ability to auction the spectrum, they said.
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Currently, the spectrum legislation furthest along in the process is the Jumpstarting Opportunity with Broadband Spectrum Act, which is part of the Middle Class Tax Relief and Job Creation Act of 2011, HR-3630, a payroll tax bill. (See separate report in this issue.) That bill doesn’t specify MSS spectrum for incentive auctions. If the spectrum provisions are passed as part of the payroll tax bill, MSS could be considered by the FCC for possible incentive auction “if it determines that the use of incentive auctions for that band is in the public interest,” said an executive. That authority may not matter in the S-band, since Dish has said it plans to use the spectrum rather than sell it.
Meanwhile, S-911, which has been approved by the Senate Commerce Committee but not voted by the full Senate, specifically would give the FCC the ability to auction MSS spectrum. Also, HR-3509 largely follows S-911, specifying incentive auction authority for the S-band. The best case scenario for Dish would likely be HR-3509 because it spells out a “Retention of Commission Authority,” which details the FCC’s continued ability to waive MSS rules for terrestrial use of the spectrum, said another industry executive.
But it’s unlikely that Dish would want to participate in incentive auctions, said MSS consultant Tim Farrar. Dish is buying S-band licensees TerreStar and DBSD and has sought waivers of MSS rules to allow it to provide terrestrial service. It would be difficult for the FCC to give Dish Chairman Charlie Ergen a large enough monetary incentive -- allowing him to break even on the S-band buys -- to take part in such an auction. Unless Dish finds itself the subject of especially onerous conditions as part of an FCC approval, there won’t be much of a reason for Dish to be a part of an auction, said Farrar. The FCC may be nearing a decision on the S-band deals and waivers, said Farrar, based on last week’s ex parte filing that showed a big contingent of Dish Network representatives pressing senior FCC officials for approval (CD Dec 19 p16).