Establishing Effective Spectrum Policy

When the Federal Communications Commission’s mobile spectrum holdings proceeding was initiated over a year ago, AT&T argued that the Commission’s basic spectrum aggregation test -- as originally conceived -- remained a sound approach.

The test seeks to strike a balance between regulatory certainty, by assuring licensees that spectrum accumulations within a safe harbor will be approved, and regulatory flexibility, by giving the Commission a focused tool to assess whether proposals that exceed the safe harbor screen will foreclose competition. The benefits of this balanced, consumer-focused approach have been extraordinary.

To be sure, modest steps are still needed to update the screen and restore its validity. These two steps are all that is necessary to restore the screen to its proper and intended function of addressing the potential for market foreclosure.

For one thing, the screen continues to exclude a substantial amount of spectrum that the Commission’s own reports to Congress recognize as usable for mobile wireless service and that, in fact, is being used today. Most prominently, the Commission should correct a current glaring omission by including in the screen the entire 194 MHz of BRS and EBS spectrum held almost entirely by Sprint/Clearwire, rather than the mere 55.5 MHz the Commission has included to date.

Moreover, some recent decisions have departed from longstanding precedent by no longer treating the safe harbor as “safe,” requiring divestitures even where the screen has not been exceeded.

These ad hoc departures from the Commission’s framework undermine the predictability that is critical to business planning. The Commission should make clear that its case-by-case analysis will be reserved for proposals to exceed the threshold level in any local market and that this review will be properly focused on the potential for actual foreclosure.