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Hill Impasse

T-Mobile Ready to Turn on 2.5 GHz Licenses as Soon as Authorized

T-Mobile is turning up the heat on the FCC to issue licenses bought in last year’s 2.5 GHz auction, linking the failure to do so to the agency’s focus on closing the digital divide. Neville Ray, T-Mobile president-technology, argued for issuing the licenses in a Thursday blog. Lawyers active in the proceeding said Chairwoman Jessica Rosenworcel continues to believe the FCC doesn’t have the authority to issue the licenses after expiration of its auction authority, though the Office of General Counsel is studying the issue.

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The FCC recently decided, as some experts had feared (see 2208290043), to pause issuing licenses after its auction authority expired (see 2303220077). T-Mobile subsequently asked for special temporary authority to use the spectrum for 180 days before the issuance of licenses (see 2303270057). The FCC declined comment Thursday.

The licenses “support wireless service in all 50 states and Puerto Rico,” Ray wrote. “They will boost speeds and bring mid-band 5G to consumers for the first time in some places,” he said: “Many of the licenses sold cover rural areas where the spectrum has been dormant, sitting on the shelf at the FCC for nearly 30 years. In cities and suburbs, the licenses will allow us to create more consistent speed and capacity across metro areas.”

Even though auction authority has lapsed, we strongly believe the FCC still has the power to issue the licenses from the last auction,” Ray said. The auction was completed before authority lapsed and “all that’s left to do is routine processing of licenses from the completed auction,” he said.

Ray references a recent letter filed at the FCC by four former general counsels arguing authority to grant licenses awarded in an auction is separate from its authority to conduct auctions. Industry officials said current General Counsel Michele Ellison is studying the letter with an eye on next steps by the FCC.

The Communications Act “clearly authorizes the Commission to continue to grant licenses for which mutual exclusivity has previously been eliminated by auction,” the letter said: “Even to the extent there is ambiguity on this point, however, it is well established that an agency has the authority to resolve ambiguous or conflicting provisions in its organic statute. The Commission therefore may issue its own reasonable interpretation of the Communications Act provisions at issue.”

The letter notes the FCC’s authority to review and grant applications for licenses and construction is grounded in Section 309(a) of the Communications Act, which is different from Section 309(j). That section “authorizes auctions as a means to resolve mutual exclusivity, but it is not itself the source of the Commission’s authority to grant licenses.” The letter was signed by Sam Feder and Howard Symons, both at Jenner Block, Wiley’s Thomas Johnson and HWG’s Christopher Wright.

Ray pressed for action on the STA request absent issuance of licenses. “The FCC grants STAs to utilize spectrum when extraordinary circumstances exist,” he said: “A once-in-a-generation lapse of auction authority is extraordinary.” T-Mobile has radios in place on towers in many of the markets, which could be turned on in a matter of days, he said. “The only thing separating nearly 50 million Americans from enhanced capacity, a huge speed boost, and world-class 5G” is issuing the STAs, he said.

T-Mobile’s concerns remain unlikely to change Capitol Hill’s impasse on temporarily reinstating the FCC’s expired auction mandate soon, lobbyists and others told us. Talks haven’t progressed in the standoff between congressional leaders and Sen. Mike Rounds, R-S.D. (see 2303070080), over his objections to passing the House-cleared renewal of the FCC’s spectrum auction authority through May 19 (HR-1108) by unanimous consent, lobbyists said. He has been trying to increase support for his proposed extension through Sept. 30 (S-650) and believes anything shorter than that would give lawmakers an opening to reach a deal on a broader spectrum package that would repurpose parts of the 3.1-3.45 GHz band for commercial use before the DOD completes a study of its systems on the frequency (see 2303280059).

There’s also still no groundswell for Senate leadership to devote precious floor time to debate and roll call votes on HR-1108, lobbyists said. They noted the mandate’s expiration hasn’t produced clear consequences outside of T-Mobile’s specific 2.5 GHz licensing woes that lawmakers have been able to seize on to advance the cause for bringing it back absent UC.