On September 22, 2023, the Wireless Telecommunications Bureau and Office of Economics and Analytics released a Public Notice seeking comment on AT&T Services, Inc.’s (“AT&T”) September 1, 2021 Petition for Rulemaking asking the Commission to adopt a mid-band spectrum screen to address undue aggregation and ensure fair and efficient opportunities for all providers to acquire mid-band spectrum.
In the Petition, AT&T makes four main arguments: (1) that mid-band spectrum, which it defines as spectrum between 2.5 GHz and 6 GHz, is required for providers to deploy 5G networks; (2) that the Commission should adopt a mid-band specific spectrum screen, specifically proposing that the Commission adopt the same spectrum screen as that imposed for spectrum below 1 GHz, i.e. imposing an enhanced factor for transactional reviews where the proposed transaction would result in the provider acquiring more than 1/3 of the available spectrum; (3) that the Commission adopt a provider-specific review in implementing spectrum-aggregation limits in the auction context; and (4) that the Commission adopt divestiture requirements for secondary market transactions that implicate the mid-band spectrum screen.
The Public Notice seeks comment on AT&T’s Petition and, more broadly, whether there are other changes to mobile spectrum holdings rules and policies that should be adopted. Specifically, the Notice seeks comment on:
- Mid-Band Spectrum Screen: The Notice seeks comment on AT&T’s request that the FCC initiate a proceeding to adopt a mid-band spectrum screen. In particular, the Notice seeks comment on: (1) whether such a screen is necessary in the secondary market context to prevent anticompetitive foreclosure strategies; (2) on AT&T’s request to apply enhanced factor review to any acquisition of unpaired mid-band spectrum that would cause a provider to hold more than 1/3 the total amount of mid-band spectrum available; and (3) the definition of mid-band, including whether the lower end of the spectrum should be 2.5 GHz, and not 1 GHz.
- Case-by-Case Review of Long-Form Applications: The Notice seeks comment on AT&T’s request that the FCC undertake a case-by-case review of long form license applications as opposed to ex ante limits.
- Spectrum Divestitures: The Notice seeks comment on AT&T’s request that the FCC play a greater role in structuring spectrum divestitures to require divestitures of contiguous spectrum. In particular, the Notice seeks comment on AT&T’s “fix it first” approach, which proposes the FCC condition approval of an acquisition on its approval of a divestiture transaction to address any competitive risks proposed by the acquisition, and whether there are alternative proposals to structure divestitures.
- Mobile Spectrum Holdings Rules and Policies: The Notice generally seeks comment on additional amendments to the mobile spectrum holdings rules and polices in light of evolutions in technologies and market dynamics. Specifically, the Notice seeks comment on:
- Whether the FCC should modify its market definitions or other factors examined in its competitive analysis for secondary market transactions.
- Policies to Promote Competition: The Notice seeks comment on amendments that might promote competition in the wireless marketplace to ensure sufficient spectrum is available for new and existing market participants. Specifically, the Notice seeks comment on ways to afford interested parties greater certainty, transparency, and predictability to make investment and transactional decisions, whether to modify its market definitions or other factors used in the FCC’s competitive analysis, and how to take technological advances or other developing frameworks into account.
- Changes to the Transactional Spectrum Screen: The Notice seeks comment on proposed changes to the spectrum screen that applies to the review of proposed transactions. Specifically, the Notice seeks comment on whether the FCC should update the spectrum bands included in the screen, adjust the 1/3 spectrum trigger that is currently applied, or whether there are other factors that should be considered in establishing a spectrum screen trigger. The Notice also seeks comment on whether the FCC should make changes to standards it applies to proposed transactions involving specific band ranges, such as enhanced factor review, how to address spectrum aggregation as new bands become available, and whether to consider spectrum weighting or contiguity of spectrum holdings when evaluating secondary market transactions.
- Changes to the Mobile Spectrum Holdings Policies at Initial Licensing: The Notice seeks comment on whether the FCC should make changes to the mobile spectrum holdings policies that apply at the initial licensing stage, including whether there should be more uniformity in applying ex ante bright-line limits or ex post case-by-case review to spectrum.
- Changes to the Attribution Rules: The Notice seeks comment on whether the FCC should reevaluate the attribution rules for determining ownership of mobile spectrum holdings.
- Policy Review Procedures: The Notice seeks comment on how and whether the FCC should evaluate the effectiveness of the remedies it uses to facilitate the FCC’s goals of diverse spectrum ownership and a competitive marketplace.
Comments are due on or before October 23, 2023.
Reply comments are due on or before November 8, 2023.
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