The FCC has told a D.C. Federal Appeals Court that Dish retains de facto control of two wireless companies, Northstar Wireless, LLC (Northstar) and SNR Wireless LicenseCo (SNR), that claimed $3.3 billion in bidding credits in the FCC's AWS-3 spectrum auction.
That came in its response to a challenge by the wireless companies to its decision, actually "decisions" plural, that those companies did not merit the credits because they were controlled by Dish, which put up the $13.3 billion in winning spectrum bids.
The FCC said the court should uphold its decision and deny the petitions to review those decisions.
As to the process, the FCC told the court that it had given those companies a chance to cure their problems, which they didn't, and via procedures consistent with FCC precedent.
As to the challenge to its conclusion that Dish still controlled them, the FCC said that Dish's authority to veto the leasing of the spectrum licenses demonstrated it still had de facto control.
It also told the court it had given the companies fair warning their revisions did not cure Dish's de facto control.
Also Read: Dish Makes Case for AWS-3 Bids
The two companies teamed with Dish to acquire $10 billion worth of spectrum licenses in the AWS-3 auction. But the FCC subsequently concluded that Dish's majority financial interest in the companies were controlling interests that should be attributable to Dish, which meant the companies were ineligible for the $1.9 billion (Northstar) and $1.4 billion (SNR Wireless) bidding credits they had applied for.
That federal court in August 2017 upheld the finding that Dish exercised de facto control, but also held that the FCC, under then chair Tom Wheeler, failed to notify the companies that if the FCC found they did not qualify for the credits, worth billions of dollars, the FCC would not give them a chance to cure that problem and instructed the FCC to correct.
The FCC under new management--Chairman Ajit Pai--and in response to the court remand, in January told the companies to renegotiate with Dish and other parties and file the necessary documents to show they now qualify for the credit. They did, but the FCC again concluded they were still controlled by Dish.
Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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