T-Mobile Makes Historical Case for Awarding 2.5 GHz Licenses

Based on history, the FCC is within its legal rights to award T-Mobile the licenses it won in the 2.5 GHz auction (see 2304060062), the company says in a new filing in the FCC’s universal licensing system. “Four former General Counsels of the Commission recently wrote to explain why they believe that the Commission continues to have authority to grant spectrum licenses notwithstanding the expiration of its power to conduct auctions,” T-Mobile said: “Their conclusion is supported by the actions the Commission and the Office of General Counsel took when the Commission’s authority to conduct lotteries to select from among mutually exclusive applicants expired as the result of an act of Congress.” T-Mobile cites the example of the Balanced Budget Act of 1997, which required the FCC to use competitive bidding and ended its ability to use a lottery system for awarding most spectrum licenses. “Then, the Commission confronted materially the same situation it faces today: did it have the authority to award licenses to applicants that had been selected via a lottery prior to the expiration of the lottery statute,” the carrier said. At the time, “the Commission held that it had the authority to continue to process the pending applications of successful lottery winners and conduct the necessary public interest review under section 309(a) of the Communications Act,” T-Mobile said Tuesday. Similarly now, the commission has “authority under section 309(a) to process the applications of T-Mobile, a successful bidder in the 2.5 GHz auction, even though that auction authority has now expired,” it said. The Wireless Bureau said “despite the sunset of lottery authority, the applications for already-conducted lotteries could still be processed.” T-Mobile also cited language in the 2003 Ranger Cellular case before the U.S. Court of Appeals for the D.C. Circuit, which challenged awarding of licenses from the lottery system (see 0307030034). The D.C. circuit “noted the Commission’s conclusion ‘that, although the Balanced Budget Act barred it from conducting new lotteries after July 1, 1997, the Act did not bar the FCC from processing [a company’s] application by using the results of a lottery that had taken place prior to that date,” T-Mobile said.