FCC Rejects Challenges To Verizon, AT&T 5G Spectrum Deals

The Federal Communications Commission has shot down separate challenges from the Competitive Carriers Association to acquisitions of 5G-primed spectrum by AT&T and Verizon, saying the trade group lacks standing to oppose the deals. CCA, which represents regional and rural wireless providers, had sought to reverse the FCC Wireless Telecommunications Bureau's approvals of AT&T Mobility LLC’s $2 billion acquisition of FiberTower Corp., as well as Verizon Communications Inc.’s $3.1 billion acquisition of millimeter wave spectrum licenses formerly held by Straight Path Communications Inc., saying the bureau erred in allowing the deals to go through. But the commission, in a pair of decisions made public Tuesday, said the CCA failed to show that the trade group or its members would be harmed by the two transactions. In the case of AT&T's acquisition of FiberTower, the commission said CCA has not shown that any of its members would be in a position to acquire spectrum licenses transferred under the deal. The FCC in January greenlighted AT&T’s acquisition of FiberTower, agreeing to settle allegations FiberTower had failed to provide wireless service for nearly 700 spectrum licenses it held, going back to 2012 when the company first sought a waiver to extend service deadlines under the licenses. According to this week’s decision, the CCA failed to intervene in FiberTower’s initial request to extend the deadline for the licenses in 2012 and failed to otherwise show it was adversely impacted by the settlement. "CCA had the opportunity to file an informal objection against the extension and waiver request back in 2012 when it was originally filed. Because CCA did not file any objection or other pleading against FiberTower’s extension and waiver request, the bureau has had no opportunity to consider the arguments raised by CCA. Thus, we dismiss CCA’s application for review," the decision says. Likewise, the commission said CCA failed to show that it was harmed by Verizon’s acquisition of so-called millimeter wave spectrum formerly held by Straight Path. Like FiberTower, Straight Path faced allegations that it improperly failed to meet buildout requirements under its 28 GHz and 39GHz spectrum licenses. In January 2017, Straight Path entered into a consent decree with the FCC’s Enforcement Bureau, under which it agreed to sell off its millimeter wave license portfolio, with 20 percent of the proceeds to go to the U.S. Treasury, or face a $100 million civil penalty. The CCA said the sale of the spectrum would violate a 2016 FCC order setting a 1250 megahertz threshold for ownership of millimeter wave spectrum, which is considered highly valuable for delivery of next generation wireless service. However, the commission boosted that threshold to 1850 megahertz last year, in an effort to keep the upper limit at roughly one third of the total millimeter wave spectrum expected to be made available. The CCA said the commission failed to properly consider the competitive effects of its decision to adopt the higher threshold. But the commission on Tuesday said it followed proper protocol when it acted to increase the threshold to 1850 megahertz, including a public comment period, and that CCA failed to show standing to challenge the decision. "CCA and others were provided with sufficient notice of, and an opportunity to comment on, both the commission’s intent to apply a secondary market threshold to analyze competition, and the revised threshold of 1850 megahertz," the decision says. The commission said it acted appropriately in ruling Verizon’s acquisition of the millimeter wave spectrum was in the public interest, because it will facilitate expansion of 5G wireless service. Representatives for the parties could not immediately be reached for comment. Counsel information for the parties was not available Thursday. The cases are In the Matter of Application of Verizon Communications Inc. and Straight Path Communications Inc., case number 87-85; and In the Matter of: FiberTower Spectrum Holding LLC, case number 18-87, in the Federal Communications Commission. --Additional reporting by Kelcee Griffis. Editing by Nicole Bleier.

This article originally ran on law360.com.