Saying Dish Network is just plain wrong, T-Mobile is arguing before the FCC that if the 12 GHz band gets freed up for mobile terrestrial use, it had better conduct an auction of the spectrum to award those rights.
T-Mobile has made this argument previously. After all, it’s not going to let a potentially lucrative slice of spectrum slip by. And it’s especially not going to let it go to Dish, which, even though a key enabler in the merger of T-Mobile and Sprint, hasn’t exactly been on T-Mobile’s good side in recent months.
Currently, the 12 GHz band is the subject of a Notice of Proposed Rulemaking (NPRM) at the commission, where a diverse set of stakeholders are debating its future. Elon Musk’s SpaceX wants it for the Starlink constellation, while Dish wants the rules changed so that the licenses it holds at 12 GHz can be used for two-way mobile 5G communications. T-Mobile, not one to pass up a shot at more mid-band spectrum, wants to see the 12 GHz spectrum auctioned before it’s awarded to Dish or anyone else for 5G purposes.
"Dish Network Corporation asserts that neither the record nor Commission precedent supports an auction of terrestrial mobile rights in the 12 GHz band and that the Commission should instead simply gift those rights to existing incumbents,” T-Mobile wrote in its September 21 filing (pdf). “Dish is both legally and factually wrong.”
Dish has argued that there’s no need for an auction – an auction was conducted years ago, and it was one of the winners, although T-Mobile points out there’s a big difference between that auction and what they’re talking about doing now. “No incumbent licenses – no matter how often Dish states to the contrary – obtained the rights to provide terrestrial mobile services at auction,” T-Mobile wrote.
The “un-carrier” added that recent FCC precedent favors an auction. For example, in the C-band proceeding, the agency rejected scenarios that would enable incumbent satellite operators to be the “sole conveyors of newly created flexible use rights in the band,” and instead found that a public auction was preferable.
In the C-band, incumbents were actually providing services. In the case of the rights being considered in the 12 GHz band, only one active commercial MVDDS deployment is known, and that’s RS Access’ deployment in the Albuquerque, New Mexico area, which required a waiver from the FCC.
“Awarding mobile terrestrial rights to spectrum non-users would provide them with an undeserved windfall,” T-Mobile told the agency. “Dish’s claim that it will use the spectrum ‘more heavily to improve 5G service to the public’ is highly doubtful based on MVDDS licensees’ lack of use of the spectrum thus far and Dish’s history of spectrum hoarding in particular. If those licensees want to provide 5G service to the public, as they assert, they can obtain those rights at auction like everyone else.”
As for relocating incumbents, T-Mobile said there’s precedent for that. In the C-band proceeding, the commission recognized it had the authority to modify a license without the consent of a license holder in order to reallocate spectrum. “Reallocating the 12 GHz band and relocating incumbent, as T-Mobile and others have suggested, would fall squarely within the parameters of that authority regardless of whether incumbents say they want to ‘double down.’”
T-Mobile pointed out that currently, only one spectrum auction is underway at the commission, and that’s the 3.45 GHz auction, which starts October 5. The commission has started the process of establishing procedures for the 2.5 GHz action, but there’s no other auction in the near-term pipeline, meaning the agency has “ample resources” to conduct an auction of the 12 GHz band in the near future.