Public Interest Groups, Phoenix Center Support Dish in Dispute With T-Mobile

Dish Network got support from public interest groups and the Phoenix Center on its request for an extension, until June 30, to exercise an option to buy 800 MHz licenses from T-Mobile. T-Mobile and parent Deutsche Telekom oppose the extension. Last week, Dish defended its request in a filing at the U.S. District Court for the District of Columbia (see 2309010050).

The option to buy the licenses was part of a series of agreements tied to T-Mobile’s buy of Sprint (see 2308170065). Burns & McDonnell, an engineering and consulting firm, also participated in the proceeding and expressed an interest in the low-band licenses (see 2308250058).

The Benton Institute for Broadband & Society, New America's Open Technology Institute and Public Knowledge jointly supported the request. Giving Dish more time is in the public interest, they said: “From the public interest perspective, what matters here is that DISH’s ability to be an effective competitor will be, at the least, significantly impaired if it lacks access to the 800 MHz spectrum which it expected to have and has expended considerable capital to be able to use.”

“In the wake of the disapproval of the proposed sale of T-Mobile to AT&T in 2011, which amici also opposed, they strongly supported policies to ensure that T-Mobile would become a strong competitor,” the public interest groups said. “As was the case after that transaction was scuttled, amici now believe the public’s interest in having a fully competitive fourth national wireless carrier cannot be fulfilled unless DISH’s pending motion is approved.”

Dish Wireless needs low-band spectrum if it hopes to compete with T-Mobile and the other major carriers, the groups said: “Only low-band spectrum (below 1,000 MHz) readily penetrates buildings, trees and other obstacles; and only low-band spectrum carries voice calls and data very long distances. Because that means fewer towers and cell cites are needed, it greatly reduces the cost of the infrastructure and siting needed to cover rural and other less populated areas.”

The free market-oriented Phoenix Center also supported granting the extension. “Entry -- particularly greenfield entry -- into the mobile industry is neither easy, cheap nor quick,” and requires substantial amounts of spectrum, the center said. It noted the sale of the 800 MHz spectrum was part of the federal approval of T-Mobile’s buy of Sprint “to increase the odds that DISH would be a viable Competitor -- and, by extension, sustain a four firm market structure.”

The center said economics have changed since T-Mobile/Sprint was approved in 2020: “The U.S. economy is now operating in uncharted waters.” Since the COVID-19 pandemic, consumers and businesses are “trying to adjust to the highest interest rates in forty years,” Phoenix said. “DISH is therefore requesting a reasonable, ten-month one-time extension to allow it to find reasonable financing to complete the 800 MHz spectrum divestiture,” it said. "Case law dictates that when ‘changed factual conditions make compliance with the decree substantially more onerous’ or ‘when a decree proves to be unworkable because of unforeseen obstacles, or when enforcement of the decree without modification would be detrimental to the public interest’ … modification is appropriate.”