FCC Unlikely to Act on Dish's T-Mobile CDMA Complaint

The FCC is likely to look to DOJ to tackle Dish Network’s complaint against T-Mobile about the pending shuttering of T-Mobile’s CDMA network, government and industry officials said in recent interviews. In a May 3 letter, groups asked the FCC (see 2105030065) to use Communications Act authority to examine the closing of the network, by year-end. The more likely forum to examine the complaint is at DOJ, though the FCC could scope the shutdown, experts said. The California Public Utilities Commission could also investigate.

FCC officials told us that while there have been informal discussions in the commissioner offices on the fight, nothing appears to be brewing on further action. Commissioners have nothing before them from acting Chairwoman Jessica Rosenworcel and nothing to discuss more fully, officials said. Dish and T-Mobile didn’t comment Tuesday.

The question is “whether Rosenworcel will wade into the various tension points in this Dish/T-Mobile battle,” said X-Lab Director Sascha Meinrath, who signed the letter: “This is particularly concerning given that the problem of T-Mobile shutting down its legacy CDMA networks will likely harm numerous poor, minority, and rural communities across the U.S.” Rosenworcel may be reluctant to bring the issue for a vote until there's a third Democratic commissioner, Meinrath said: “Numerous mission-critical dockets that would help address the digital divide are on hold.”

“Rural consumers are usually the last ones on a technology,” said Rural Strategies Vice President Tim Marema, who also signed the letter: “Just looking at things like landlines, a greater percentage of rural residents are still going to be dependent on their landlines while other areas have gone to mobile.”

In a deal brokered with DOJ in 2019, T-Mobile agreed to spin off assets to Dish, including Sprint’s prepaid businesses Boost Mobile, Virgin Mobile and Sprint prepaid. DOJ, anticipating potential competition issues as Dish launches a network, established a monitoring trustee for complaints. Questions on the transaction are likely to be handled by DOJ, said Senior Vice President Harold Feld of Public Knowledge, which led the letter. The FCC will “generally need to take a supervisory role in the 3G sunset,” he said: “I expect the FCC to ask both carriers detailed questions about the situation and to pressure both carriers to work together to avert any disruption of service. I expect this to be an application of the FCC's bully pulpit rather than an actual exercise of authority.”

The FCC November 2019 order approving the deal found “no need for conditions relating to the Applicants’ maintenance of a CDMA network to be able to offer CDMA roaming.” The order said “applicants have stated that they do not plan to commence the termination of the CDMA network prior to January 1, 2021, and intend to work with rural service providers to accommodate Sprint’s CDMA roaming customers as part of the transition.” Rosenworcel and Commissioner Geoffrey Starks dissented then. The FCC and DOJ didn't comment now.

“The wind is blowing in the direction of FCC stepping in,” said Summit Ridge Group’s Armand Musey. “A Democratic-led FCC, at the margin, is likely to be more concerned about potential anti-competitive behavior.” Boost subscribers are more likely "to be lower income people for whom a handset transition might be more of a burden and more likely to be experiencing problems with broadband access,” he said.

“It is not difficult for the FCC to say that the DOJ, which was involved in the drafting and has specific enforcement powers, should handle it,” said New Street’s Blair Levin. Harder is the commission having “a hands-off philosophy about shutting down a network, potentially stranding customers and/or their equipment, while moving to a higher performance network,” Levin said: “That is an issue the FCC has faced on multiple occasions and one where Congress looks to the FCC to assure the public equities are correctly balanced.”

This is “the second significant dust-up between Dish and T-Mobile … and the relationship isn’t even a year old,” said MoffettNathanson’s Craig Moffett: “That certainly can’t be good news for the health of the relationship. In a perfect world, Dish would probably want T-Mobile to renew their mobile virtual network operator agreement when it expires in 2027. Hard to see T-Mobile wanting to do that.”

CPUC

T-Mobile and others have until the end of May under CPUC rules to respond to Dish’s April 28 petition to modify the April 2020 T-Mobile/Sprint OK in docket A.18-07-011. That filing corrected an earlier one asking to reopen review to enforce takeover commitments (see 2104270073). The agency didn’t comment this week.

The CPUC should respond to Dish’s petition -- and probably will, said Managing Director-San Diego Christine Mailloux of The Utility Reform Network, a PK letter backer. “I think there will be movement and ... a decision.” CPUC was concerned during deal review about not leaving customers, Mailloux said. The agency didn’t order T-Mobile wait three years, but the carrier said repeatedly it would take that long to shut the 3G network, she said.

“CPUC could address these issues in their disaster relief docket as the shutdown of 3G service for rural customers could have public safety implications, especially during wildfire season,” said Equity Legal Counsel Vinhcent Le of Greenlining Institute Technology, which signed the PK letter to the FCC. Outside of that proceeding, the state commission might not have bandwidth to take on this issue with much potential broadband legislation, he said. Greenlining doesn’t want to stop the 3G shutdown; “the question is around the transition and the speed of it and how to protect customers,” noted Le.

T-Mobile executives didn’t comment on the Dish complaints during a quarterly call last week. CEO Mike Sievert said the CDMA sunset is “on track” for year-end or early 2022. “A big piece” is “we have to migrate all the Sprint customers in order to get there and that's going really well,” he said.

The fight is intensifying. T-Mobile, in comments in the 12 GHz proceeding (see 2105100028), urged the FCC not to give Dish rights to use its 12 GHz satellite licenses for terrestrial mobile. While Dish received “terrestrial rights to operate in AWS-4 spectrum nearly a decade ago, it has yet to make use of the spectrum,” T-Mobile said: “The Commission should not make the same mistake again.”