The Federal Communications Commission sided with Starlink in a battle against Dish Network today, rejecting a Dish proposal that could have degraded Internet service for Starlink satellite users. In a 4-0 vote, the FCC decided not to authorize high-powered terrestrial mobile service in the 12.2-12.7 GHz band that is already used by Starlink customer terminals for downloads.

The vote “ensure[s] the present and future of satellite services in the 12.2-12.7 GHz band. We recognize that millions of people rely on services in this band—and we want to see that continue,” FCC Chair Jessica Rosenworcel said at today’s meeting. The band is also used for satellite TV.

In its announcement of the vote, the FCC said it “declin[ed] to authorize two-way, high-powered terrestrial mobile use due to a significant risk of harmful interference to existing and emergent services, particularly in the growing satellite broadband market.”

Dish already uses spectrum from the 12.2-12.7 GHz band for satellite TV and wants to use the band for cellular service as well. While the FCC rejected the mobile proposal, it said it would investigate the potential to expand terrestrial fixed use or permit unlicensed use in that spectrum.

Specifically, the FCC will seek comment on allowing point-to-point fixed links in 12.2-12.7 GHz at higher power levels than the current rules allow and on “adding indoor-only underlay and unlicensed use.” The agency also teed up a plan that could eventually allow mobile broadband in the adjacent 12.7-13.25 GHz band.

Starlink urged users to fight Dish plan

Starlink asked users for help in its battle against Dish in June 2022, urging them to contact the FCC. “Dish has been attempting to claim new rights to the 12 GHz band, which is the spectrum you currently use to download content with Starlink,” the SpaceX subsidiary told customers at the time. “Despite technical studies dating back as far as 2016 that refute the basis of their claims, Dish has employed paid lobbyists who are attempting to mislead the FCC with faulty analysis in hopes of obscuring the truth.” The company claimed Dish’s plan would make “Starlink unusable for most Americans.”

“Thank you to the 100K+ Starlink customers who spoke up, the FCC voted to protect high-speed satellite Internet users from harmful interference,” Starlink wrote on Twitter today. Starlink broadband has already been getting slower as more people use the network, though performance could improve as new second-generation satellites are launched by SpaceX.

FCC Commissioner Geoffrey Starks, a Democrat, said he “would have welcomed a path forward that allowed both services to thrive” in 12.2-12.7 GHz, but that the evidence shows mobile use of the band would interfere with satellite. “Based on the studies filed to date, our engineers have concluded that high-powered mobile broadband, when deployed throughout the country, will interfere with established and emerging satellite services that serve millions of consumers,” Starks said.

Commissioner Nathan Simington, one of two Republicans on the FCC, said he is still “hopeful that there is a way to allow satellite and two-way high-power fixed wireless service to coexist in the 12.2 to 12.7 GHz band,” but that it isn’t technically feasible in the short term.

“The power levels and coverage profiles of terrestrial networks risk saturating [satellite receiver] arrays with interference from networks of powerful terrestrial transmitters, including via side lobes even when care is taken with terrestrial antenna angles,” Simington said. “Barring significant technology developments driving down the price and complexity of individual array elements while driving up quality, this will probably be the case for some time to come.”

https://arstechnica.com/?p=1940349

Dish Network and Viasat lost their attempt to block one of the key approvals Starlink received from the Federal Communications Commission. On Friday, the US Court of Appeals for the District of Columbia Circuit rejected the Viasat and Dish protests in a ruling that upheld the FCC decision.

Dish and Viasat sued the FCC after the commission’s April 2021 decision to let SpaceX fly 2,824 of its Starlink satellites at a lower altitude than originally planned, in the 540-570 km range instead of 1,110-1,325 km. The FCC rejected protests from satellite competitors while agreeing with SpaceX that the altitude change would improve broadband speed and latency while making it easier to minimize orbital debris.

A panel of three DC Circuit judges heard the appeal and unanimously sided with the FCC and SpaceX, which was an intervenor in the case on the FCC’s behalf. “Dish argued that the proposed changes would interfere with its GSO [geostationary orbit] satellite television service,” the judges wrote. “Another competitor, Viasat, Inc., jointly objected with an environmental organization calling itself The Balance Group. They argued that NEPA [the National Environmental Policy Act] required the FCC to prepare an environmental assessment before granting the modification.”

Dish claimed the FCC did not adequately consider the risk of signal interference, but the judges rejected that argument on the merits. Judges denied The Balance Group’s appeal, saying the group lacked standing as it failed to adequately explain its operations or membership. They rejected Viasat’s appeal because the company’s theory for why it was injured by the FCC decision is “much too speculative” and “does not fall within the zone of interests protected by NEPA.”

In summary, judges found that the FCC “adequately explained its conclusion that the modification of SpaceX’s license would not interfere with Dish’s satellites, and there is no proper party to pursue the NEPA claim.” The same court in July 2021 rejected Viasat’s motion for a preliminary injunction that would have halted Starlink satellite launches while litigation continued. The case was argued in December 2021, and the court’s opinion was filed by Circuit Judge Gregory Katsas.

The losing parties could ask the DC Circuit appeals court to rehear the case in front of all the court’s judges or file a petition with the Supreme Court. But either avenue would probably be a long shot.

Why Dish lost

Dish’s first argument is “that the FCC unreasonably refused to consider expert reports claiming that SpaceX’s proposed changes would interfere with Dish’s GSO satellites. But the reports use a different method for assessing interference than what binding regulations require,” the ruling said.

Contrary to Dish’s claims, the FCC considered the possibility of interference and found that the Starlink altitude change “will not increase interference to GSO satellite systems,” the ruling said. The FCC “applied the correct legal standard in making that finding based on a certified compliance with ITU [International Telecommunication Union] power limits.”

Judges said they also rejected Dish’s argument that “the FCC unreasonably waived the requirement of a favorable ITU finding, thus allowing SpaceX to proceed based on software validation alone.” The FCC had good cause to make that decision, the ruling said:

When the International Bureau first granted the waiver, it determined that an ITU backlog would significantly delay the start of operations even though SpaceX had already certified compliance with ITU power limits using ITU-approved software. We have held that “harm resulting from delay” can be good cause for a waiver. Here, the [FCC’s International] Bureau reasonably granted a waiver to avoid long delays in the provision of Internet service to Americans who remain “totally unserved by other broadband solutions.” And it reasonably concluded that the certification of compliance would provide some assurance of no harmful interference.

https://arstechnica.com/?p=1876713

T-Mobile apparently lied to government regulators about its 3G shutdown plans in order to win approval of its merger with Sprint, according to a ruling in a proceeding in front of the California Public Utilities Commission (CPUC). The ruling issued Friday ordered T-Mobile “to show cause why it should not be sanctioned by the commission for violating” a CPUC rule with “false, misleading, or omitted statements.”

T-Mobile won approval for its 2020 acquisition of Sprint in part by agreeing to sell Sprint’s Boost Mobile prepaid business and other assets to Dish, which is building its own 5G network and reselling capacity from other networks. T-Mobile agreed to make its 4G LTE and 3G CDMA networks available to Dish customers during a three-year transition period from 2020 to 2023, the CPUC ruling said. But T-Mobile now plans to stop providing CDMA network services nationwide on January 1, 2022, and Dish has urged government regulators to force T-Mobile to live up to its commitments.

T-Mobile’s false and misleading statements under oath indicated, among other things, that T-Mobile would make its CDMA network “available to Boost customers until they were migrated to Dish Network Corporation’s LTE or 5G services” and that Dish would have up to three years to complete the migration, the ruling said.

The CPUC can impose penalties against T-Mobile of up to $100,000 for each offense.

T-Mobile used “false” statements to get merger done

The ruling was made by Administrative Law Judge Karl Bemesderfer and a CPUC commissioner who was assigned to the case, Clifford Rechtschaffen. They ordered T-Mobile to appear via video conference at a hearing before the administrative law judge on September 20.

Their ruling said there is “a reasonable basis to conclude that T-Mobile… misrepresented material facts and misled the commission” with statements under oath. The ruling said that when the CPUC allowed the merger, it “relied on the specific false statements, omissions, and/or misleading assurances T-Mobile gave regarding its use of [Sprint’s] PCS spectrum and its repeated references to a three-year customer migration period without a degraded experience… it appears that these false statements, omissions and/or misleading assurances and the related time references were intended to induce the commission to approve the merger.” The premerger statements made in testimony to the commission were later contradicted by T-Mobile’s response to a Dish complaint, the ruling said.

“The discrepancy between information in T-Mobile’s testimony and information provided in its response is so serious that it warrants further investigation by this commission. Furthermore, impacts on service could harm Boost prepaid customers, who are frequently low-income, rural, and transient,” the ruling said.

The CPUC fight may extend beyond 3G, as the ruling said that “upon further investigation, we may amend this Order to Show Cause to include charges related to the early retirement of the Sprint LTE network.”

T-Mobile/Dish feud escalates

When contacted by Ars today, T-Mobile said the decision “is meritless and without basis in fact. We look forward to presenting evidence and setting the record straight through the upcoming process. For months, T-Mobile has been working aggressively to ensure no customer is left behind as we transition to technology that will better serve them into the future. We remain committed to that goal.”

In a blog post last week, T-Mobile CEO Mike Sievert called the situation “a manufactured crisis, orchestrated by Dish” and accused Dish of “dragging their feet in getting their customers upgraded to the superior 4G/5G world.” Sievert also suggested that Dish customers switch to T-Mobile to “get onto more advanced and reliable technology.”

Dish, which recently decided to switch most of its network traffic from T-Mobile to AT&T, has said T-Mobile should have to maintain the 3G CDMA network until at least July 2023, three years after Dish’s purchase of Boost. Dish told the Federal Communications Commission that T-Mobile’s “blatantly anticompetitive decision to prematurely shut down the operation of the legacy Sprint CDMA network” will likely “harm millions of Boost consumers, [including] many who already face economic challenges.”

T-Mobile “contradicted sworn statements”

T-Mobile is moving its PCS spectrum from CDMA to 5G, even though it previously “omitted and/or provided misleading information regarding the fact that PCS spectrum was used to provide service to Boost customers on the CDMA network” and “never indicated that using PCS spectrum for CDMA service could impact T-Mobile’s 5G buildout,” the ruling said.

After Dish complained to the CPUC in April 2021, “T-Mobile flatly contradicted its witness [CTO Neville] Ray’s prior statements regarding the type of spectrum needed for CDMA and 5G service, now saying that ‘PCS spectrum comprises the significant majority of spectrum being used to provide CDMA.'” In premerger testimony, Ray listed the types of spectrum T-Mobile needed for 5G “several times” but never mentioned PCS spectrum.

“T-Mobile further contradicted prior sworn statements that maintaining CDMA services would not delay its 5G buildout, now saying that the buildout requires both the PCS spectrum and the cell towers presently employed to provide CDMA service including the equipment on the towers,” the ruling said.

Before the merger was approved, Ray said in testimony that T-Mobile’s MVNO [mobile virtual network operator] agreement with Dish “will have no adverse impact at all on our existing LTE network or on our planned world-leading 5G network,” the CPUC ruling said.

“In a December, 2019 pleading, T-Mobile stated that its ‘service to existing Sprint CDMA and LTE customers will be maintained until they are migrated to the New T-Mobile network as customers of New T-Mobile or Dish,'” the ruling said. “Emphasizing the three-year duration of the migration period (‘That’s why we’ve always said it’s a three-year integration program’), T-Mobile pledged ‘to make sure that no Sprint customer during that migration process, be they a Boost customer or a Sprint customer… suffers anything approaching a degraded experience.”

Summary of findings

The CPUC commissioner and administrative law judge’s ruling summarized T-Mobile’s false and misleading statements as follows:

Specifically, 1) T-Mobile previously represented that it would not need PCS spectrum for its 5G build-out and the 800 MHz spectrum would be used for CDMA service for Boost customers but now indicates a significant need for PCS spectrum for both CDMA service and its 5G build-out, 2) T-Mobile generally stated that the MVNO agreement with Dish would have no adverse impact on T-Mobile’s existing and 5G networks but now claims that maintaining the CDMA network would delay the 5G build-out, and 3) T-Mobile previously stated that service would be maintained for Boost customers until migration was completed during the migration period (2020-2023), but now contends that it cannot delay its planned shutdown of its CDMA network on January 1, 2022, which could impair the service of customers who have not yet migrated to Dish’s LTE or 5G service.

Department of Justice has “grave concerns”

The US Department of Justice said in a letter to both Dish and T-Mobile on July 9 that it has “grave concerns about the potential for a nationwide CDMA shutdown to leave a substantial proportion of Boost’s customers without service.” The DOJ said that either or both companies could potentially violate the merger agreement “if the network shutdown strands a substantial proportion of Boost customers, particularly if either or both parties have not taken all appropriate steps to affirmatively alleviate any such harms in the leadup to implementing the network shutdown.”

While T-Mobile is forbidden from “impeding Boost’s customer relationships, rejecting their lawful traffic, and unreasonably frustrating Dish’s use of T-Mobile’s networks,” Dish is required “to pursue all available avenues to prevent a widespread loss of services to the customers,” the DOJ said.

https://arstechnica.com/?p=1787524

Dish Network has agreed to pay AT&T at least $5 billion over 10 years for network access amid a feud between Dish and T-Mobile.

Dish is in the early stages of building a 5G network and in the meantime is serving customers as a reseller using network capacity that it purchases from T-Mobile. But Dish and T-Mobile are fighting over T-Mobile’s plan to shut down its 3G CDMA network earlier than it originally intended, with Dish accusing T-Mobile of anticompetitive behavior.

Against that backdrop, Dish today announced “the signing of a transformative, long-term strategic Network Services Agreement with AT&T, making AT&T the primary network services partner for Dish MVNO [mobile virtual network operator] customers.”

The AT&T network capacity will serve customers on Dish’s “retail wireless brands, including Boost Mobile, Ting Mobile, and Republic Wireless,” Dish said. Dish also said the agreement will accelerate its “expansion of retail wireless distribution to rural markets where Dish provides satellite TV services” and that AT&T will provide transport and roaming services to support Dish’s future 5G network.

Dish revealed the $5 billion price in a Securities and Exchange Commission filing that also notes that the roaming and transport services from AT&T will not be limited to areas where Dish doesn’t build 5G infrastructure. The deal “provides Dish’s retail wireless customers with voice and data roaming services throughout the US on the AT&T network and access to AT&T’s network, even within the markets where Dish is deploying its own 5G network,” Dish told the SEC.

Today’s deal between AT&T and Dish is nonexclusive, so Dish can use both T-Mobile and AT&T capacity to serve customers. But Dish’s statement that AT&T will become the “primary” network provider for Dish MVNO customers shows that Dish is trying to minimize the use of T-Mobile’s network. Dish’s MVNO deal with T-Mobile lasts until 2027.

Partnership with T-Mobile goes south

The T-Mobile/Dish partnership grew out of T-Mobile’s purchase of Sprint. When the Trump administration’s Justice Department allowed that merger, it required T-Mobile to sell Dish the Boost Mobile prepaid business formerly owned by Sprint, as well as spectrum licenses and wholesale access to the combined T-Mobile/Sprint network. The deal was supposed to help Dish become the fourth major carrier to replace the competition lost when the T-Mobile/Sprint merger reduced the number of nationwide carriers from four to three.

Dish has since accused T-Mobile of anticompetitive behavior in multiple filings to the Federal Communications Commission. Dish complained to the FCC in April that “T-Mobile has announced its intention to turn off the Sprint CDMA network—home to millions of Boost subscribers—on January 1, 2022. This is significantly sooner than the three-year migration timeline it previously announced.”

Dish says that T-Mobile should have to maintain the 3G CDMA network until at least July 2023, which is three years after Dish’s purchase of Boost. Dish said that T-Mobile stated the three-year timeline in a July 2019 SEC filing and in statements to the California Public Utilities Commission (CPUC). For example, T-Mobile told CPUC that it would “support former Sprint customers during the 3-year migration period” and that it will be able to “support Sprint customers who are reliant on LTE and CDMA technologies and to shepherd customers with incompatible handsets through the migration process.”

T-Mobile says Dish “cherry-picked statements”

T-Mobile said it didn’t commit to a three-year timeline, telling the FCC that “the statements Dish cites were simply acknowledging that T-Mobile has up to three years to fully sunset the legacy Sprint CDMA network… It is absurd for Dish to suggest that these three cherry-picked statements formed the basis of its business plan and should be deemed to override the clear and unambiguous contractual language contained in the MNSA [the Master Network Services Agreement between T-Mobile and Dish].”

T-Mobile further argued that “all CDMA customers, including Dish’s Boost-branded customers, will receive enormous benefits by migrating as planned onto T-Mobile’s new network, and it is absolutely in their best interest to do so. Under our agreement, it is unambiguously Dish’s financial responsibility to migrate customers to the new technology in a timely manner, and if they live up to those obligations, no consumers will be negatively affected by the sunset and in fact will receive substantial benefits.”

Dish then called T-Mobile’s response an “unconvincing attempt to justify its blatantly anticompetitive decision to prematurely shut down the operation of the legacy Sprint CDMA network” and said it is “indisputable” that “the accelerated shutdown of the CDMA network likely will harm millions of Boost consumers, many who already face economic challenges.”

“Dish is not asking for T-Mobile to do anything except honor the commitments it made to regulators under oath and keep the CDMA network operational until at least July 2023,” Dish told the FCC. “While T-Mobile had no problem making these statements to give comfort to regulators that its acquisition of Sprint would not result in consumer harms, T-Mobile is now hiding behind narrow contractual provisions in its attempt to perpetrate the exact harms it promised it would not cause.”

Dish and T-Mobile have one more ongoing fight

T-Mobile and Dish also disagree on sharing the 12 GHz spectrum band, as T-Mobile urged the FCC to avoid giving terrestrial mobile rights to companies with MVDDS [Multichannel Video and Data Distribution Service] satellite-TV licenses, which includes Dish. T-Mobile said that would amount to “an undeserved windfall.” Dish wants to use the spectrum band for 5G.

As part of the T-Mobile/Sprint merger-and-divestment proceedings, Dish committed to the government that it would build a 5G network serving 70 percent of Americans by June 2023.

https://arstechnica.com/?p=1781474

SpaceX and Dish Network are fighting at the Federal Communications Commission over Dish’s attempt to block a key designation that SpaceX’s Starlink division needs in order to get FCC broadband funding.

A SpaceX filing submitted yesterday said that Dish’s “baseless attempt” to block funding “would serve only to delay what matters most—connecting unserved Americans.” While Dish says it has valid concerns about interference in the 12 GHz band, SpaceX described Dish’s complaint to the FCC as a “facially spurious filing” that “is only the latest example of Dish’s abuse of Commission resources in its misguided effort to expropriate the 12 GHz band.”

The dispute is related to several FCC proceedings including one on a Starlink petition seeking designation as an Eligible Telecommunications Carrier (ETC) under the Communications Act. SpaceX needs this legal designation in some of the states where it won federal funding to deploy broadband in unserved areas. Dish asked the FCC to deny SpaceX the needed status in the 12 GHz band.

SpaceX was tentatively awarded $885.51 million over 10 years from the FCC’s Rural Digital Opportunity Fund (RDOF) but still needs final approval from the FCC, both for the ETC status and the funding itself. SpaceX’s funding would require it to deploy broadband to 642,925 homes and businesses in 35 states. For practical purposes, the money would partially subsidize SpaceX’s costs for deploying its low-Earth-orbit satellite network that could serve rural areas throughout the US, not just for those 642,925 locations. Some lobby groups representing small Internet service providers also objected to SpaceX’s funding.

Dish is a satellite-TV provider rather than a home-Internet provider, and it did not bid in the RDOF auction. But Dish is building a 5G mobile broadband network that could eventually use spectrum from the 12 GHz band that Dish already uses for satellite TV. With SpaceX also using 12 GHz frequencies, Dish says it is worried about interference.

Dish’s interference claims

Dish filed a petition last week asking the FCC to deny SpaceX’s request for ETC status in the 12.2-12.7 GHz band, while saying it “does not object to ETC status for SpaceX based on its access to other frequency bands.” Starlink’s ETC status for 12 GHz “should be denied or deferred, pending the resolution of the DBS [Direct Broadcast Satellite] interference concerns arising in that band from SpaceX’s proposed modification of its satellite system, and the sharing questions presented in the Commission’s recently initiated 12 GHz rulemaking,” Dish said.

As Dish’s petition noted, SpaceX intends to “fly its satellites at less than half” the originally planned altitude—540 km to 570 km instead of 1,110 km to 1,325 km—”and transmit to the US at close to half the elevation angle.” Dish said it commissioned a study using SpaceX’s own data to show that the change “could imperil DBS transmissions in the 12 GHz band.”

Dish told the FCC that SpaceX’s plan “would adversely affect reception at DBS consumer dishes and that the system as modified would exceed the applicable power limits under International Telecommunication Union and Commission rules. In other words, SpaceX would not be able [to] use the 12 GHz band to meet its RDOF obligations if such service interferes with DBS operations.”

SpaceX disputed Dish’s claim about power limits, saying that “Dish and its paid consultant allege only that they would have used different parameters if they ran SpaceX’s network and the way they would run it could violate [power flux-density] limits.”

Dish’s 5G ambitions

In 2016, a Dish-led coalition asked the FCC to let 5G mobile services operate in the 12 GHz band. In response, the FCC in January 2021 issued a Notice of Proposed Rulemaking that seeks public input on “whether the Commission could add a new or expanded terrestrial Mobile allocation in the 12 GHz band without causing harmful interference to incumbent licensees.” Dish wants the FCC to delay any decision on Starlink’s ETC status until this proceeding resolves spectrum-sharing concerns.

“As for the 12 GHz rulemaking, the Commission is considering allowing two-way mobile 5G service in the band, which, depending on the final outcome, could limit SpaceX from using the band as SpaceX proposes,” Dish told the FCC.

SpaceX has opposed mobile use in the 12 GHz band.

“Because SpaceX is using the 12 GHz Band for downlinks from SpaceX satellites to consumer terminals, any action to degrade the utility of the 12 GHz Band will directly harm consumers in the near term,” SpaceX told the FCC in June 2020. “By contrast, the theoretical terrestrial services proposed in the 2016 Petition are at best years away from deployment and, if ever deployed, are likely to track the same geography as today’s terrestrial networks.”

SpaceX: Dish trying to “commandeer” spectrum

SpaceX’s filing yesterday said that Dish’s real purpose is “to obstruct the ETC designation and RDOF processes as part of Dish’s larger efforts to hamstring a competitor and to commandeer valuable spectrum already being used to serve American homes and businesses.”

“Dish presents no valid basis on which to deny or defer Starlink Services’ ETC designation,” SpaceX told the FCC. “To the contrary, doing so would serve only to impede Starlink Services’ ability to meet its RDOF public interest obligations. Even more importantly, it would delay the provision of high-quality voice and broadband service to many of our nation’s hardest-to-serve communities, which have gone unconnected for far too long already.”

SpaceX also argued that Dish’s complaints are too late because the FCC already decided to let ISPs use the 12 GHz band for offering subsidized broadband. SpaceX pointed out that its application for a change to its satellite system “was filed months before” the FCC adopted procedures for the RDOF auction. “Nonetheless, the Commission decided to include the 12 GHz band in the auction and to allow SpaceX to participate, even after a short-form review involving heightened scrutiny,” SpaceX said. “Dish’s argument now that its opposition to the modification somehow renders those Commission decisions meaningless is nonsensical.”

In the RDOF auction, SpaceX said, the FCC did not block use of the 12 GHz band because “that spectrum had already been allocated for NGSO [non-geostationary orbit] satellite use and licensed to a number of NGSO satellite systems for broadband service at the time the procedures were adopted.”

SpaceX said that Dish’s petition also ignored details of the 12 GHz spectrum-sharing proceeding in which, SpaceX said, “the Commission made clear that no new rules could be adopted unless the Commission could do so ‘without causing harmful interference to incumbent licensees’ such as SpaceX.” Additionally, “the fact that 12 GHz spectrum licenses are subject to future Commission rulemakings [does not] change anything for purposes of Starlink Services’ ETC Petition,” SpaceX said.

SpaceX has also battled with Amazon at the FCC over the companies’ dueling plans for satellite broadband.

Charter and Frontier face opposition, too

SpaceX is not the only big company facing opposition to its FCC funding. Lobby groups for small ISPs last week challenged funding tentatively awarded to Charter and Frontier. The reverse auction format resulted in funding awards that were lower than expected and won’t cover the actual deployment costs, the groups said. They claimed that Charter and Frontier may prefer to pay penalties to the FCC years down the road instead of actually finishing the required build-outs.

Charter and Frontier “appear to have utilized a strategy that calls into question a true desire to build out gigabit broadband,” the small-ISP groups said. The big ISPs “have bid and won areas, possibly with the intent to protect territory and hold competition at bay, perhaps viewing the payment of default penalties several years from now as a fair price to pay for warding off competition and keeping other providers from gaining access to funding to serve areas in need. Frontier poses the added concern of being in Chapter 11 bankruptcy, bringing into question its financial viability to deliver on its commitments.”

Charter is set to receive $1.22 billion over 10 years from the RDOF to bring service to 1.06 million homes and businesses in 24 states. The ISP has said it will put up most of the deployment money itself. “Charter expects to invest approximately $5 billion to support its buildout initiative—offset by $1.2 billion in support won from the RDOF auction—expanding Charter’s network to lower-density, mostly rural communities that do not have access to broadband service of at least 25/3Mbps,” Charter said.

Frontier is due to receive $370.9 million to deploy broadband to 127,188 locations in eight states even though it missed previous broadband-deployment deadlines. With the FCC having yet to make a final decision on each ISP’s funding, Sen. Shelley Moore Capito (R-W.Va.) urged the commission to reject Frontier’s funding in West Virginia.

The RDOF is paid for by Americans through fees imposed on phone bills. FCC Acting Chairwoman Jessica Rosenworcel objected to the auction going forward when Republican Ajit Pai was chairman, saying the FCC should have waited until it can collect more accurate broadband-mapping data. Rosenworcel hasn’t said whether she will make any major changes to the funding awards yet.

Disclosure: The Advance/Newhouse Partnership, which owns 13 percent of Charter, is part of Advance Publications. Advance Publications owns Condé Nast, which owns Ars Technica.

https://arstechnica.com/?p=1746518

The major broadcast networks today sued the makers of Locast, a nonprofit organization that provides free online access to broadcast TV stations. The lawsuit filed by ABC, CBS, Fox, and NBC seeks financial damages and a permanent injunction that would shut Locast down.

Broadcast TV networks are available for free over the air with an antenna. But selling the rights to retransmit those signals in other ways is a big business. Broadcasters reportedly collected $10.1 billion in 2018 via retransmission fees they charge cable and satellite TV companies.

TV providers routinely pass this cost along to consumers in the form of “Broadcast TV” fees. Pay-TV providers use these fees to raise the actual cost of service above their advertised prices and to raise customers’ prices even while they’re under contract.

Pay-TV providers have also been refusing broadcasters’ demands to pay even higher fees, and broadcast channels have frequently been blacked out on cable and satellite TV systems as a result.

Use an antenna—or Locast

TV subscribers can deal with blackouts by using an antenna—or a service like Locast. While Locast is a nonprofit, the broadcasters argue that it’s actually bankrolled by the satellite TV industry. DirecTV owner AT&T notably donated $500,000 to Locast, and Locast’s founder has ties to Dish Network.

Locast says it is on a mission to help TV viewers get easier access to channels that are supposed to be free:

Ever since the dawn of TV broadcasting in the mid-20th Century, non-profit organizations have provided “translator” TV stations as a public service. Where a primary broadcaster cannot reach a receiver with a strong enough signal, the translator amplifies that signal with another transmitter, allowing consumers who otherwise could not get the over-the-air signal to receive important programming, including local news, weather and of course, sports. Locast.org provides the same public service, except instead of an over-the-air signal transmitter, we provide the local broadcast signal via online streaming.

So far, Locast is available in 13 US markets, namely Baltimore; Boston; Chicago; Dallas; Denver; Houston; Philadelphia; Rapid City, South Dakota; Los Angeles; New York City; San Francisco; Sioux Falls, South Dakota; and Washington, DC. Locast intends to expand to new markets but solicits donations because it says it has “considerable costs for equipment, bandwidth, and operational support.” Locast can be used on mobile devices, streaming boxes, and Web browsers; it detects your location and lets you choose from a selection of local TV channels.

Networks claim Locast isn’t really a nonprofit

Broadcasters fear that wider availability of free TV channels will make it harder to charge retransmission fees to cable and satellite companies. The networks filed their lawsuit in US District Court for the Southern District of New York against Sports Fans Coalition founder David Goodfriend and the New York chapter of his group, which created Locast. Goodfriend, an attorney and lobbyist, has been fighting TV blackouts for years on multiple fronts.

The lawsuit filed by ABC, CBS, Fox, and NBC says:

Plaintiffs, including their affiliated companies, collectively invest billions of dollars to create, acquire, and provide valuable television programming. That programming is broadcast to the public for free over-the-air viewing, but the overwhelming majority of households have elected the convenience and reliability of viewing Plaintiffs’ copyrighted programming through services offered by cable, satellite, broadband, and mobile providers. By virtue of several Acts of Congress, those providers must have a license to retransmit copyrighted television programming, notwithstanding that the programming is broadcast over the air by Plaintiffs and their local affiliates, and must also secure the consent of the broadcasters to retransmit the broadcast signals.

Even though the TV channels are available for free, Locast can’t retransmit them, the lawsuit said:

Locast captures over-the-air broadcast signals, strips critical data from those signals, and then retransmits those signals, and the copyrighted content that they carry, to registered users over the Internet. The catch is, unlike licensed cable, satellite, and streaming services, Locast neither obtains Plaintiffs’ permission nor pays for its exploitation of Plaintiffs’ exclusive rights to publicly perform their copyrighted content. Instead, Locast simply takes Plaintiffs’ copyrighted content and retransmits it to its registered users at will over the Internet.

The broadcasters acknowledged that a 1976 copyright law allows nonprofits to boost local broadcast signals. But they argue that “Locast is nothing like the local booster services contemplated by Congress in creating this narrow exemption.” In reality, the networks’ lawsuit says that “Locast’s founding, funding, and operations reveal its decidedly commercial purposes.”

To prove that Locast has “commercial purposes,” the lawsuit points to AT&T’s $500,000 donation and the fact that Goodfriend is a paid lobbyist for Dish. AT&T and Dish have both fought broadcasters over retransmission fees, leading to blackouts.

The lawsuit says:

These two for-profit businesses [AT&T and Dish] provide Locast with valuable nationwide distribution of the Locast app on the Internet-connected set-top boxes of their subscribers. At the same time, Locast provides these two major distributors with commercial benefits that include the ability (a) to avoid obtaining retransmission consent from local stations to include local stations in their pay-TV offerings by integrating the Locast app into their customers’ set-top boxes; (b) to gain leverage in negotiations with broadcast stations over retransmission consent rights to offer their subscribers access to broadcast channels; and (c) for Dish, to promote a version of its Sling TV Internet television service that does not carry local broadcast channels by telling potential customers that they can “supplement” Sling TV by getting the broadcast channels via Locast. Locast is not the noncommercial, community public service it purports to be. It is a strategic play funded by and functioning for the benefit of decidedly commercial interests.

AT&T released a statement saying that “Locast offers consumers an innovative new way to access free over-the-air signals. We support technologies that give consumers more choices and better access to this local content.”

Founder ready for legal fight

Will that argument convince a judge or jury? Goodfriend was eager to find out even before he got sued, according to a New York Times article in January titled “Locast, a Free App Streaming Network TV, Would Love to Get Sued.”

“I ask people all the time, ‘Do you know you’re supposed to get television for free?'” Goodfriend said, according to the Times. With Locast, “We are operating under parameters that are designed to be compliant within the law,” he also said.

Goodfriend also told the Times that he tried to get funding from Dish Chairman Charlie Ergen but wasn’t able to. Goodfriend wasn’t drawing a salary from Locast and had taken out a loan to fund the operation, which cost more than $700,000 as of January, the Times article said. AT&T’s donation came several months later.

We contacted Goodfriend about the lawsuit today and will update this story if we get a response.

Colorado Law professor Blake Reid thinks the broadcasters’ lawsuit has some holes.

“The broadcasters are in a bind here because they could have argued that Locast is a cable system, but they pushed to shoot down that argument back when Aereo made it after losing on fair use in the Supreme Court,” Reid told Ars today. “Basically, they want to have their cake and eat it, too—they don’t want an Internet-based system to be able to pay for retransmission as a cable system, but that opens up [the possibility] that a non-profit organization like Locast can be eligible for this exemption.”

Proving that Locast violates the copyright law’s nonprofit exemption will be hard, but maybe not impossible, Reid said.

“The complaint makes some extremely incoherent arguments about Locast somehow gaining commercial advantage as a non-profit,” Reid said.

Still, Reid wouldn’t rule out the chance of broadcasters succeeding in their argument that Locast’s ties to AT&T and Dish undermine its nonprofit status. But winning on that point could be a Pyrrhic victory because it wouldn’t stop future services from providing the same service Locast does.

Locast’s funding is “a complicated factual issue that I’m not sure we know all the facts about yet, but the best that does for the broadcasters is stop Locast specifically and create a blueprint for another nonprofit to step up and do the same thing,” Reid said.

Aside from the funding question, the plain language of the statute seems to support a nonprofit retransmitting TV signals over the Internet, Reid said. The nonprofit exemption says, “The secondary transmission of a performance or display of a work embodied in a primary transmission is not an infringement of copyright if… the secondary transmission is not made by a cable system but is made by a governmental body, or other nonprofit organization.”

To qualify for that exemption, the law says an organization must not have “any purpose of direct or indirect commercial advantage.” The broadcasters’ argument that Locast is basically a front for AT&T and Dish would thus be a problem for Locast if it can’t provide a convincing counter-argument.

But other parts of the statute are probably easy for Locast to satisfy, Reid said. The statute says retransmissions must be made “without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service.” While Locast solicits donations, it isn’t charging users for its service, and so it wouldn’t run afoul of that provision.

“This part’s very easy for Locast to satisfy as a nonprofit,” Reid said.

Locast isn’t the only threat to broadcast networks’ retransmission fees. A bipartisan bill filed in the House last week seeks to end the current retransmission consent system and “allow free-market contract negotiations to happen under traditional copyright law.”

https://arstechnica.com/?p=1544045

The Justice Department today announced its approval of the T-Mobile/Sprint merger as part of a settlement that requires the merging companies to spin off several assets to Dish Network.

The DOJ decided against filing a lawsuit to block the T-Mobile US purchase of Sprint, even though it reduces the number of major mobile network providers from four to three. In exchange for its approval, the DOJ convinced the companies to sell Dish spectrum licenses, wholesale network access, and Sprint’s prepaid business including subsidiaries Boost Mobile and Virgin Mobile. Boost and Virgin both resell Sprint network access instead of operating their own networks.

Dish would use its newfound assets to resell T-Mobile/Sprint service and to build its own network. The building-its-own-network part is far more crucial for Dish to effectively replace the competition eliminated by the merger, but this is expected to take several years.

The DOJ’s approval is not the last one T-Mobile and Sprint need, because 13 states and the District of Columbia sued the companies to block the merger.

Dish “a faux competitor, not a real one”

Consumer advocates are rooting for the states in their lawsuit.

“This deal [with the DOJ] creates a faux competitor, not a real one, which is why I would bet on the states in their forthcoming court challenge,” attorney Andrew Schwartzman of the Benton Foundation told media outlets in a statement. Schwartzman led the Media Access Project, a public interest telecommunications law firm, from 1978 to 2012.

Schwartzman continued:

Dish is buying Boost, a brand which sells prepaid service to low-end consumers. Dish will start with none of the lucrative postpaid customers, no brand name and no retail network. Even if Dish successfully builds out its own network, that could not happen for several years, during which time the three big wireless companies will be able to lock in their customer and introduce their 5G technologies. In other words, rather than having Sprint as a weak fourth competitor, the combined companies will now face an extremely weak fourth competitor.

The DOJ convinced five states to sign on to the settlement, namely Nebraska, Kansas, Ohio, Oklahoma, and South Dakota. But none of these are among the 13 states suing to block the deal.

Terms of the settlement as announced by the DOJ are as follows:

T-Mobile and Sprint must divest Sprint’s prepaid business, including Boost Mobile, Virgin Mobile, and Sprint prepaid, to Dish Network Corp., a Colorado-based satellite television provider. The proposed settlement also provides for the divestiture of certain spectrum assets to Dish. Additionally, T-Mobile and Sprint must make available to Dish at least 20,000 cell sites and hundreds of retail locations. T-Mobile must also provide Dish with robust access to the T-Mobile network for a period of seven years while Dish builds out its own 5G network.

New York Attorney General Letitia James vowed to continue the states’ lawsuit against the merger. “The promises made by Dish and T-Mobile in this deal are the kinds of promises only robust competition can guarantee,” James said in a statement. “We have serious concerns that cobbling together this new fourth mobile player, with the government picking winners and losers, will not address the merger’s harm to consumers, workers, and innovation.”

DOJ defends settlement

DOJ antitrust chief Makan Delrahim said that the “settlement will provide Dish with the assets and transitional services required to become a facilities-based mobile network operator that can provide a full range of mobile wireless services nationwide.”

The DOJ acknowledged that the “combination of T-Mobile and Sprint would eliminate head-to-head competition between the companies and threaten the benefits that customers have realized from that competition in the form of lower prices and better service.” But the department argued that the required divestitures will allow Dish to replace the lost competition, ensuring that Americans will still have four facilities-based choices nationwide.

Federal Communications Commission Chairman Ajit Pai announced his support of the T-Mobile/Sprint merger in May. The FCC approval, which still needs a commission vote, is contingent on the divestiture of Boost Mobile and a guarantee that Boost will have access to the T-Mobile/Sprint network. Transferring licenses to Dish would likely require a further FCC approval, however.

Today, Pai said he’s ready to move forward with a final FCC approval. “I plan to present my colleagues soon with a draft order, consistent with the [Justice] Department’s filings, favorably resolving the FCC’s review of the transaction,” Pai said in a statement. He said that the merger will result in T-Mobile and Sprint “deploy[ing] a 5G network that would cover 99 percent of the American people.”

But many critics of the merger are not convinced by the DOJ and FCC arguments. “If the merger goes forward, it would leave the United States with only three viable nationwide wireless-service providers even with these divestitures,” advocacy group Free Press said. “Approving the merger would crush competition, raise prices and eliminate thousands of jobs, according to union estimates. It would disproportionately harm low-income people and communities of color, who rely on robust competition among T-Mobile and Sprint and their subsidiaries to keep access affordable.”

The Rural Wireless Association, an industry group that represents small, rural carriers, also criticized the DOJ action.

“The conditions imposed on New T-Mobile by the consent decree are drastically insufficient to protect against the clear harms this market-consolidating merger would bring,” the RWA said. “Expecting Dish, a startup mobile carrier in its infancy, to be able to compete as a fourth nationwide network, with divested wireless assets from Sprint and T-Mobile and Boost’s MVNO customers, and subject only to a handful of requirements that will expire, spells disaster for American consumers.”

https://arstechnica.com/?p=1542227

The Justice Department plans to approve the T-Mobile/Sprint merger as part of a settlement involving the sale of spectrum licenses, wholesale access, and a prepaid wireless business to Dish Network, The Wall Street Journal reported today.

“The companies have spent weeks negotiating with antitrust enforcers and each other over the sale of assets to Dish to satisfy concerns that the more than $26 billion merger of the No. 3 and No. 4 wireless carriers by subscribers would hurt competition,” the Journal wrote, citing people familiar with the matter.

As a result of those negotiations, the DOJ is “poised to approve” the merger and could announce a settlement with T-Mobile and Sprint “as soon as this week, but the timing remains uncertain,” the Journal wrote.

Even if the DOJ approves the merger, T-Mobile and Sprint will still have to defend it in court because of a lawsuit filed against them by 13 states and the District of Columbia.

Dish, the second-biggest satellite TV provider after AT&T’s DirecTV, has been buying spectrum for years without ever launching cellular phone and data service. Previous reports about a settlement involving Dish said that Dish would get wholesale access to the T-Mobile/Sprint network, spectrum, and prepaid wireless carrier Boost Mobile. Boost is owned by Sprint and is a network reseller.

Today’s Journal report said the pending settlement “provides for Dish to acquire prepaid subscribers” but didn’t say whether those will come from Boost. Boost’s involvement seems likely, given that Federal Communications Commission Chairman Ajit Pai’s approval of the T-Mobile/Sprint merger is contingent on the divestiture of Boost Mobile and a guarantee that Boost will have access to the T-Mobile/Sprint network.

“Dish would also get a multiyear agreement to use the wireless companies’ network while it builds dedicated infrastructure,” the Journal wrote. The report didn’t say how much spectrum Dish will get.

Dish to pay $5 billion

Bloomberg reported last night that Dish “agreed to pay $5 billion for wireless assets” in its deal with T-Mobile and Sprint. The deal includes $1.5 billion for prepaid mobile assets and $3.5 billion for spectrum licenses.

“Under the terms of the deal, Dish can’t sell the assets or hand over control of the agreement to a third party for three years,” Bloomberg wrote.

Dish becoming a major carrier could solve the problem caused by the T-Mobile/Sprint merger, that it would reduce the number of major nationwide competitors from four to three. But Dish has famously dragged its feet in using its assets to build a wireless network, with T-Mobile CEO John Legere calling Dish a spectrum hoarder in February of this year. Even under a best-case scenario presented by the settlement with the government, it sounds like it could take Dish several years to build its own network and become a major threat to AT&T, Verizon, and the combined T-Mobile/Sprint.

https://arstechnica.com/?p=1540839

T-Mobile US and Sprint are reportedly near a deal to sell spectrum, wholesale network access, and Sprint’s Boost Mobile subsidiary to Dish as part of an attempt to gain government approval of their merger. But US antitrust officials reportedly want bigger concessions before they’ll approve the T-Mobile/Sprint combination.

T-Mobile’s purchase of Sprint would leave the US with three instead of the current four major wireless carriers. The Department of Justice, which could sue to block the deal, has apparently pushed T-Mobile to make divestitures that would set up a fourth major carrier to replace Sprint. That has left T-Mobile negotiating with Dish, which opposed the T-Mobile/Sprint merger. The companies’ feud is a two-way street, with T-Mobile repeatedly criticizing Dish for buying spectrum and not using it.

“[T-Mobile owner] Deutsche Telekom, Dish, and the DOJ are close to an agreement, and a deal could be finalized by next week, according to people familiar with the matter,” CNBC reported yesterday.

But there are still sticking points, including on terms that would give Dish wholesale access to the T-Mobile/Sprint network. Dish would use this access to resell wireless service for several years while it builds its own network.

“The DOJ wants Deutsche Telekom to give Dish unlimited access to its network,” CNBC wrote. “T-Mobile has pushed back, arguing Dish should only be given access to 12.5 percent of the network’s capacity.”

The T-Mobile/Dish deal would further “include a revenue-sharing agreement,” and Dish would “acquire additional spectrum and prepaid wireless carrier Boost Mobile from the combined Sprint/T-Mobile,” CNBC wrote. Boost is owned by Sprint and is a network reseller that offers prepaid wireless service.

The wholesale-access agreement would not be permanent. Dish would have access to the T-Mobile/Sprint network “for about six or seven years,” and afterward, “Dish would be forced to move its wireless airwaves onto a network that it has built for itself,” CNBC wrote.

The deal as described by CNBC would leave the US with just three major nationwide carriers that operate their own networks until Dish finally gets its own network up and running. Dish has been a vocal opponent of the T-Mobile/Sprint merger—Dish last year petitioned the FCC to block the deal, telling the commission that having only three major carriers would “likely increase prices for consumers.”

T-Mobile called Dish a spectrum “hoarder”

Dish, the second-biggest satellite TV provider after AT&T’s DirecTV, has been buying spectrum for years without ever launching cellular phone and data service.

“Dish has spent roughly $20 billion over the past decade to amass a significant spectrum portfolio, and has roughly 95MHz of low-band and mid-band spectrum per market,” FierceWireless wrote last year.

T-Mobile in October 2018 urged the FCC to force Dish to use the spectrum quickly or give it up. The FCC “should act now to signal that the spectrum must be put to productive use or be relinquished,” T-Mobile told the commission. “Spectrum is too precious a resource to be wasted on hoarders.”

T-Mobile CEO John Legere again criticized Sprint for “hoarding” spectrum in February of this year.

Dish wouldn’t be much of a competitor if it doesn’t build a robust network. Dish itself told the FCC in its petition to deny the merger that wireless resellers “are only as effective as their facilities-based landlords choose to let them be. Only facilities-based providers, who have both access to spectrum and the infrastructure to use it, can create capacity, upgrade networks, or extend their network coverage.”

FCC Chairman Ajit Pai recently signed off on the T-Mobile/Sprint merger, with conditions including the divestiture of Boost Mobile and a guarantee that Boost will have access to the T-Mobile/Sprint network. Pai’s approval is still pending a full vote of the commission, but the other members of the agency’s Republican majority have said they support the merger.

FCC and DOJ approvals alone aren’t enough for T-Mobile and Sprint to complete their deal. Last month, nine states and the District of Columbia filed a lawsuit against T-Mobile and Sprint in an attempt to stop the wireless carriers from merging. Four more states later joined the lawsuit, meaning the merger faces opposition from California, Colorado, Connecticut, the District of Columbia, Hawaii, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New York, Virginia, and Wisconsin.

https://arstechnica.com/?p=1531391

Enlarge (credit: HBO)

AT&T-owned HBO and Cinemax have been pulled from Dish’s satellite TV service and the Dish-owned Sling TV streaming service over a money dispute, marking the first-ever blackout for HBO in its 46-year history.

In June, US District Court Judge Richard Leon allowed AT&T to complete its purchase of Time Warner Inc., the owner of HBO and Cinemax, saying there was no reason to believe that AT&T would use its market power to harm rival TV providers or consumers. AT&T is also the owner of DirecTV, Dish’s primary competitor in the satellite TV business.

Dish said AT&T pulled HBO from Dish and Sling TV, while HBO said that Dish pulled the channel from its services as a negotiating tactic. Dish said that its customers will get bill credits for the time they cannot access HBO or Cinemax.

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