FCC: Dish's wireless plan would imperil the PCS H Block

The FCC and Dish Network continued to spar over proposed rules governing Dish's wireless spectrum, with the FCC saying that Dish's plan would imperil the 1900 MHz PCS H Block, which Sprint Nextel (NYSE:S) has said it wants to bid on and use for its LTE network.

Last week Dish blasted the proposal put forward by FCC Chairman Julius Genachowski, which would set power limits on the lower portion of Dish's spectrum to prevent interference with the H Block. Separately, the FCC also said it will propose auctioning the H Block in 2013. Dish said the agency's proposal was "significantly flawed." Dish said the FCC's rules ultimately "could add years to a process that has already lasted 20 months."

The FCC fired back and said Dish's plan would prevent the government from getting as much money as possible for the H block; the money will be used to help fund a nationwide public-safety mobile broadband network. "In arguing that the commission should destroy the value of the H Block, Dish is seeking to take a public asset potentially worth billions of dollars and turn it into a private windfall," FCC spokesman Justin Cole said in a statement, according to Bloomberg.

Dish has countered that it has already spent $4 billion on its network, including $2.78 billion to acquire its spectrum. "This is not windfall; it's a venture where success is by no means assured," Dish spokesman Bob Toevs told Bloomberg. "While we remain ready to work with the commission, we urge it to consider the sacrifices its current approach to the H Block means for spectrum, jobs and investment."

The FCC has not provided details on the spectrum proposals, which the five-member commission must still vote on in order to put them into action. The item is not on the FCC's agenda for its meeting Nov. 30.

Dish Network has been pushing the FCC for much of this year to allow terrestrial services in AWS-4 spectrum. Dish controls 40 MHz of MSS S-band spectrum in the 2 GHz band, which the FCC has renamed AWS-4. Dish received approval from the FCC in March to get access to the mobile satellite spectrum, but the FCC did not grant it a waiver to offer terrestrial-only services in that spectrum. Dish has said it plans to launch an LTE Advanced network on the spectrum by 2016 if the FCC allows terrestrial services.

Separately, Congress has mandated the FCC auction the H Block of spectrum by February 2015; the H Block is paired spectrum from 1915-1920 MHz and 1995-2000 MHz. Sprint has said repeatedly it supports Dish's plans but wants to protect both the PCS G Block and H Block from interference.

In a separate FCC filing, Dish said that an FCC proposal that would give priority to the H Block was legally flawed. Dish said Congress's direction "simply requires an auction of the H Block if the spectrum can 'be used without causing harmful interference to commercial mobile service licensees in the frequencies between 1930 megahertz and 1995 megahertz.' This in no way suggests, let alone requires, that MSS/AWS-4 services should be secondary to, or accept harmful interference from, possible future H Block operations."

Dish said nothing in the act authorizing the H Block auction requires that the spectrum be used for high-power services like LTE. Dish said the airwaves could be used for small cells, for instance. Dish said the FCC should not consider potential auction revenue when deciding what is in the public interest and that doing so would be unlawful.

"Dish continues to support a policy that promotes full use of both MSS/AWS-4 spectrum and the H Block, and rejects efforts to force the commission to pick between the 40 MHz of MSS/AWS- 4 band and the 10 MHz of the H Block," Dish wrote. "The commission should seek out a policy that ensures utilization of all available spectrum for mobile broadband, consistent with the broader objectives of the Spectrum Act and the goals articulated in the national broadband plan. The commission also should avoid adopting rules for AWS-4 that would require a prejudgment of whether and how the commission will auction the H Block."

For more:
- see this Bloomberg article
- see this FCC filing

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