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Hard Cap Urged

Commenters Disagree on Need for Mid-Band Spectrum Aggregation Rules

AT&T, Dish Network, NCTA and public interest groups were among those to call on the FCC to revisit spectrum caps, in response to a September notice from the FCC (see 2309220064). Other comments saw the rulemaking as a waste of time for the agency. AT&T asked for a rulemaking two years ago, focused on mid-band holdings, but the FCC's questions go beyond what AT&T sought (see 2310060051).

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The FCC has no rules for mid-band spectrum aggregation, similar to what’s in place for low- and high-band spectrum, AT&T said, posted Tuesday in docket 23-319. Spectrum aggregation rules “remain rooted in the flip-phone era, when traffic demands were lighter and could thus be met with narrower bands of paired spectrum, and long before mid-band spectrum became a broadband necessity,” the carrier said. AT&T said its position on the need for mid-band rules hasn’t changed since it sought a rulemaking.

The excessive spectrum concentration among incumbent carriers raises costs for other competitors, including DISH, and inhibits them from competing on a level playing field,” Dish said. Dish, which is trying to emerge as the nation’s fourth major wireless carrier, said the screen should require heightened scrutiny when a provider has more than 25% of the spectrum in a given market. “Given the higher barriers to 5G competition for any carrier other than the big three, the Commission should adopt both more stringent spectrum screens and a stricter policy of enforcing them,” Dish said.

The rulemaking “should examine updating the spectrum screen (including taking into account spectrum contiguity), and should structure clear and effective presumptions and divestiture remedies for transactions that are predicted to harm competition and consumers because they would exceed one of the screens,” Dish said.

But T-Mobile, a target of the 2021 petition, said AT&T’s request “is not a rational starting point for reexamining the Commission’s spectrum aggregation policies.” AT&T’s proposal “for a new mid-band screen was filed two years ago and concocted as a self-interested measure to restrict T-Mobile’s ability to participate in then-upcoming mid-band spectrum auctions,” T-Mobile said: “Subsequently, AT&T acquired a major share of spectrum assets in both the C-band auction and the 3.45 GHz auction, clearly refuting the fanciful central hypothesis in its Petition that T-Mobile has either the incentive or ability to foreclose AT&T from acquiring mid-band spectrum.”

NCTA also urged the FCC to get tough on spectrum aggregation. The FCC should “promote competition and innovation by enabling new entrants, including small and rural entities, to participate robustly in spectrum auctions and secondary market transactions, and to access spectrum through co-existence regimes,” NCTA said: “Use this proceeding to adopt policies and rules to remedy excessive spectrum concentration and promote competition and innovation in the marketplace for spectrum-based services and technologies.”

The FCC’s policies should support competition by four wireless providers, said Public Knowledge and the Open Technology Institute at New America. “Convert the current screen into a genuine hard cap” rather than just requiring the asking of questions when a carrier exceeds limits, the public interest groups said. Policies should also “reflect the differences in physical characteristics of the different frequencies,” they said. The FCC should rely on auction-specific limits “in addition to general spectrum aggregation limits” and “address the vertical integration" of mobile virtual network operators with facilities-based providers and "adopt policies to enhance MVNO competition,” the groups said.

A coalition of mid-band spectrum holders said rules would be “redundant.” A mid-band spectrum screen “would undermine competition by reducing service providers’ incentives to obtain and deploy such spectrum, reduce spectrum auction revenues, and harm the public interest,” the coalition said: “Even if no changes are ultimately adopted, launching a rulemaking proceeding would waste limited Commission resources.” Canopy Spectrum, Cherry Wireless, Monarch Wireless, N Squared Wireless, Tristar License Group and United Wireless Communications signed the filing.

The Competitive Carriers Association expressed skepticism on the benefits of a rulemaking. “The best way for the FCC to enhance competition in the mobile wireless market and ensure there is sufficient spectrum to support new entrants and existing competitors is to provide a steady influx of new spectrum into the market and maintain a regular cadence of spectrum auctions,” CCA said.

A review of the FCC’s spectrum screen should be comprehensive, looking at the full scope of competitive factors and considering how spectrum bands are being used in different ways for different services,” emailed Steve Sharkey, T-Mobile vice president-government affairs, technology and engineering policy. “The commission should return to its core objective of promoting competition, for both home internet and mobile customers, and preventing foreclosure by putting an end to the misuse of spectrum screens for anticompetitive purposes,” he said.