T-Mobile Recon Petition Seen Unlikely To Lead to Action Against Dish

A T-Mobile reconsideration petition asking the FCC to restrict Dish Network’s bidding in the broadcast incentive auction because of Dish’s use of the designated entity rules in the AWS-3 auction isn't considered likely to get much traction, with agency leadership focused on maximum auction participation, lawyers and analysts told us Monday. The credibility of the incentive auction should also be important to the commission, T-Mobile Senior Vice President-Government Affairs Kathleen Ham said. “The auction needs to be fair. What happened in the last auction wasn’t fair.” Dish and the FCC didn't comment.

The commission should reconsider the auction procedures public notice and reissue it with rules that designate Dish and the companies it was associated with in the AWS-3 auction as “former defaulters” under the commission’s rules, which would require that they “provide a 50% higher upfront payment” to participate in the incentive auction, T-Mobile's recon petition said. The FCC needs to “ensure the integrity of the auction process” by holding Dish, Northstar Wireless and SNR Wireless “accountable for their past behavior and discouraging them and others from repeating that behavior in the incentive auction,” T-Mobile said. The Communications Act gives the FCC discretion over auction procedures and directs it to “protect the public interest in the use of the spectrum,” giving it the authority to act against Dish, T-Mobile said.

The FCC is seen as unlikely to do this because of Chairman Tom Wheeler’s emphasis on a successful incentive auction, industry officials and attorneys told us. With Sprint declaring itself out and AT&T saying it won’t participate heavily, the FCC is seen as unlikely to discourage a potential big bidder like Dish, an attorney with clients involved in the incentive auction told us. Though Wheeler has characterized some of the wireless professions of lack of interest in the incentive auction as posturing, AT&T is seen by some as in favor of delaying the auction, the attorney told us. That makes discouraging Dish a less attractive proposition for the commission, the attorney told us. “Why would the commission take an aggressive move against a large bidder right before the auction?” a lawyer asked.

T-Mobile is making a “shameless play” to be the only large bidder for the spectrum reserve the FCC set aside, Phoenix Center President Lawrence Spiwak said. “They would literally corner the market on that spectrum.” Ham disagreed, saying the market for the reserved spectrum is “very competitive.”

With FCC action against Dish that would hurt its auction participation seen as unlikely, T-Mobile’s true intent may be an attack on the designated entity rules, Spiwak said. The problems with Dish’s AWS-3 bids may have made designated entities “a wounded buffalo” and therefore vulnerable to attack, he said. Even if the FCC takes no action, hanging a flag on the issue and getting the commission and legislators to focus on it can lead to extra oversight, Ham said. “It doesn’t hurt to call attention to these things." A public notice on T-Mobile’s recon petition, which it also filed as a request for a declaratory ruling, was released for opposition comments and replies alongside two other recon petitions: one from Walker broadcasting asking that it get to participate in the auction, and a petition from a group of rural cellular carriers asking the FCC for fewer restrictions on rural service provider bidding credits (see 1512040047).