The C-Band Alliance (CBA) recently responded to a number of critics of its proposal to make 200 megahertz of 3.7-4.2 GHz spectrum available for 5G, saying many commenters wrongly contend that the “market-based approach” that it’s advocating for violates the Communications Act and flies in the face of precedent.
It’s noteworthy on several fronts, including the timing. The CBA's response was filed Feb. 6, the same day that several critics were calling for more transparency from the group and noting the great likelihood that the CBA’s plan would lead to litigation. Representatives from Google and Charter Communications also suggested the CBA plan would delay getting the spectrum into the hands of 5G players longer than if it were to go through a public FCC auction.
The C-band, or 3.7-4.2 GHz, is considered midband spectrum, which offers a “Goldilocks” mix of capacity and coverage that mobile operators and other 5G stakeholders want in 5G. It’s probably one of the best shots carriers have at getting midband spectrum at the moment, since the 3.5 GHz band will offer only 70 MHz for licensed usage when a portion of that band is made ready for auction.
In its filing, the CBA—a group comprised of Intelsat, SES, Eutelsat Communications and Telesat—cited specific sections of the Communications Act that back the idea that its proposal is permissible under the current law. The CBA called its plan a “market-based approach.” Others are calling it a private sale or auction that would lead to a windfall for satellite companies.
The Open Technology Institute (OTI) at New America held a forum on Feb. 6 titled “The Great Airwaves Robbery II,” explaining that it wouldn’t be the first attempt by someone trying to get wrongly reimbursed for government-controlled spectrum. Congress enacted legislation in 2002 that averted those earlier efforts.
The CBA wasn’t on that panel, although its proposal dominated the discussion and CBA Head of Advocacy and Government Relations Preston Padden addressed some issues during a heated Q&A session.
The American Cable Association (ACA) and T-Mobile assert that the CBA’s approach would violate Section 309(j)(6)(E) because it contemplates negotiations among “private parties,” which they suggest is beyond the scope of that statute. “These entities offer no support for their contention that the statutorily authorized ‘negotiations’ cannot take place among private parties,” CBA told the FCC. “Nothing in the language of the statute limits this term, and their position flies in the face of D.C. Circuit precedent which confirms that ‘settlement negotiations’ ‘sure[ly]’ are a permissible ‘means of avoiding mutual exclusivity’ under Section 309(j)(6)(E).”
Much of the filing refutes arguments T-Mobile has put forth and at one point refers to one of T-Mobile’s comments as a “banal observation” given the unique challenges raised in the proceeding, including shared access by satellite operators to C-band spectrum.
Padden said the unique feature about the CBA’s approach is the satellite operators are all on board. When comparisons are made to the 600 MHz incentive auction involving TV broadcasters, he said those TV stations were voluntarily participating. With the C-band, each satellite operator has equal access to all 500 megahertz at their disposal, so every carrier must agree to participate in an auction and be happy with the price they’re getting—something he puts the odds of happening at zero.
The C-Band Alliance is also offering to take care of existing users, making sure the proper filters are installed on thousands of satellite dishes across the county so that service is not disrupted. Padden questioned who in the government would take care of that if it rejects the CBA's proposal. The C-Band currently carries live TV and radio programming from content producers to local stations and cable systems nationwide.
Panelists at the OTI event reiterated that one of their big concerns was the lack of information they were getting from the CBA—something they think would be rectified if the FCC were to conduct a more traditional public auction of the airwaves. The ACA has some real concerns especially for rural companies that are highly dependent on C-band spectrum because alternative ways, namely fiber, are not available or affordable, and they’re concerned about remediation being driven by the satellite industry.
The CBA on Thursday also filed satellite transponder migration plans (PDF) developed by SES and Intelsat. The plans describe in detail how SES and Intelsat currently plan to accommodate all existing C-band customers in 300 MHz of spectrum and demonstrate that 200 MHz is the maximum amount of spectrum that can be cleared without denying C-band service to some current customers.