The Competitive Carriers Association (CCA) is urging the FCC to auction FiberTower’s 650 licenses that previously were terminated to allow other carriers—as well as AT&T—the opportunity to bid on the licenses and use the spectrum for 5G.
AT&T quietly disclosed a couple months ago that it wants to acquire all of FiberTower’s assets, including licenses that are the subject of a pending remand from the U.S. Court of Appeals for the District of Columbia circuit. AT&T said it would be in the public interest for it to gain control of the 24 GHz and 39 GHz licenses lickety split and put them to use for 5G services.
But hundreds of FiberTower's millimeter wave licenses were terminated for failure to meet the FCC's buildout requirements and subsequently landed in legal limbo. CCA said allowing FiberTower to benefit from failing to meet its construction obligations “sets an alarming precedent” in light of the low-, mid- and high-band spectrum coming up for renewal over the next several years.
FiberTower holds interests in a total of 738 24 GHz and 39 GHz licenses, including those licenses subject to the court's remand. Under the proposed deal, AT&T would get control of 39 GHz licenses covering about 99.8% of the U.S. population, according to the FCC's preliminary review.
By way of background, CAA noted that in 2012, FiberTower filed applications to renew both active licenses and licenses that were terminated by the FCC. It also filed for an extension or wavier of the 2012 construction deadline for licenses it had not constructed.
The FCC’s Wireless Bureau denied FiberTower’s extension requests, but on appeal, the D.C. Circuit found the FCC did not consider FiberTower’s construction demonstrations for 42 of its licenses. CCA argued that the FCC should reclaim the licenses that were terminated, and put 650 of those up for reauction.
CCA said the 39 GHz band in particular is well-suited for mobile use and, in fact, many rural carriers already use it for fixed wireless use.
“Competitive carriers want to provide their customers with next-generation services, and a reauction of spectrum in the 39 GHz band—and potentially the 24 GHz band as well—will ensure next generation spectrum is put to its highest and best use,” CCA President and CEO Steven K. Berry said in a prepared statement. “Importantly, an auction would allow the U.S. Treasury to receive funds for deficit reduction to the benefit of all taxpayers. What’s more, the Commission should not reward FiberTowers’ failure to meet its spectrum buildout requirements by allowing the applicants to make a profit on the proposed license transfer. These licenses were terminated—every carrier, including AT&T—should be allowed to bid on this spectrum asset, and that profit should be redirected to the benefit of U.S. taxpayers and the economy.”
For its part, AT&T has set forth arguments as to why the FCC should both resolve the D.C. Circuit court’s remand by granting FiberTower’s requests for waivers, renewing all of its licenses and approving the transfer of licenses to AT&T. The operator has argued that the same 5G policy considerations that led the FCC to allow Straight Path to keep the majority of its licenses apply with even greater force to its own case.
CCA said that argument is misguided and the actions taken in the Straight Path matter were in the context of an enforcement proceeding and involved a negotiation between the FCC’s Enforcement Bureau and Straight Path, rather than a transfer of control. It also resulted in Straight Path having to voluntarily cancel 196 of its 39 GHz authorizations and pay a minimum of $100 million to the U.S. Treasury, depending on whether it sells its licenses within the next year.
AT&T will have a chance to rebut CCA's arguments as the FCC issued a public notice March 16 establishing a series of comment deadlines beginning March 30 and ending April 13.
As a side note, one of FiberTower's investments just came out of stealth mode. PHAZR, which was named the most innovative startup at the IEEE Wireless Communications and Networking Conference (WCNC) 2017 in San Francisco, announced a partnership with FiberTower last year whereby FiberTower, PHAZR’s largest investor at the time, agreed to participate in the initial round of funding along with iTimeFund and other investors.