The FCC has denied a protest by satellite companies over its decision to move them out of the lower 300 MHz of the 500 MHz C-Band so it could auction 280 MHz of that band (minus a 20 MHz guard band).
The FCC had denied a request by small satellite operators ABS Global Ltd. (ABS), Empresa Argentina de Soluciones Satelitales S.A. (ARSAT), Hispamar Satélites S.A., and Hispasat S.A. (Hispasat) to stay its decision to auction the lower portion of C-Band satellite spectrum for terrestrial 5G. A federal court had likewise denied a stay, after which the operators protested to the FCC that it was not authorized by statute to make such a "fundamental change" to their licenses.
The FCC voted unanimously, with two partial dissents from the Democrats, to dismiss the protest on procedural grounds because it did not raise any new arguments but relied on arguments already made. And, since it relied on arguments the FCC had addressed when approving the migration, the FCC also dismissed the complaint on the merits for the reasons it gave when denying the stay.
The FCC, in denying the protest, countered that it was empowered to modify any license if it concluded that would promote the public interest, and pointed to court precedent that the FCC can migrate licenses from one spectrum range to another and not run afoul of the prohibition on fundamental changes to licenses so long as the migration allows them to continue to provide comparable service.
The FCC concluded that the move to the upper 200 MHz of the band will allow for that comparable service since the upper portion of the band is being used now by those operators. It even suggested that the migration might make it possible for them to serve new customers.
FCC commissioner Jessica Rosenworcel said she approved the dismissal because "in doing so, the agency clears the way for a court to consider the merits of the FCC’s decision-making in the underlying proceeding." A court can't consider an appeal until the agency has provided a final decision, which it has done in rejecting the protest. "I support today’s order because I believe we should speed the way for this resolution," she said.
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