FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,720
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competition and guard against the harmful effects of anticompetitive behavior.65 As the Commission
recognized in the Secondary Markets First Report and Order, spectrum leasing arrangements potentially
raise competitive concerns, and the Commission applied its general competition policies for terrestrially-
based mobile services to these arrangements.66 Specifically, the Commission observed that it may
consider the use of leased spectrum as a relevant factor when examining marketplace competition. In
assessing the potential competitive effects of spectrum leasing arrangements, the Commission stated that
it would determine, based on a case-by-case review of all relevant factors, whether services provided over
both leased and licensed spectrum in specific product and geographic markets should be taken into
account.67
23. We conclude that spectrum leasing arrangements involving MSS/ATC spectrum also
potentially raise competitive concerns, as several commenters assert.6' As we discussed above,
technological advances will enable MSS licensees and their spectrum lessees to use ATC authority to
provide mobile services similar to those provided by terrestrial mobile providers. While we recognize
that in the past the Commission has not viewed MSS as a substitute for terrestrial mobile services,69 we
have recently observed that the mobile satellite service industry currently is undergoing major
technological advances and structural changes.70 In particular, we note that several MSS providers have,
at various times, articulated plans to offer high-speed data services, especially in connection with
terrestrial networks using their ATC authority, and that such services in the future could affect, and
potentially enhance, competition in the provision of terrestrial mobile services.7' Spectrum lessees of
65 Secondary Markets First Report and Order, 18 FCC Red at 20656, 1 16.
66 Id. at 20656-57. 20667, 116-19, 147 (determining that both spectrum manager and de facto transfer leasing
arrangements potentially raise competitive concerns).
67 1d at 20656-20657, 118.
68 Cricket Comments at 2 (the Commission should ensure MSS/ATC spectrum leasing arrangements promote
competition); U.S. Cellular Comments at 4-5 (proposing that the Commission review spectrum leasing arrangements
that involve the two largest terrestrial wireless providers); Granite Telecommunications Comments at 1-10 (arguing
that the Commission should develop rules to prevent anticompetitive behavior by MSS/ATC licensees and spectrum
lessees): AT&T Comments at 7-8 (noting that the Commission already has a process for addressing competitive
issues in the context of terrestrial spectrum leasing arrangements). Other commenters argue, however, that the
Commission should not subject MSS/ATC spectrum leasing arrangements to a competitive analysis. DBSD
Comments at II (Commission has historically considered MSS/ATC and terrestrial wireless services to be different
services that are imperfect substitutes); TerreStar Comments at 6 (MSS/ATC providers do not possess sufficient
spectrum amounts for any competitive concerns to arise, even if all MSS/ATC spectrum were to be leased).
69 ATC Report and Order, 18 FCC Red at 1962. 39: DBSD Comments at I I; see also, e.g., Applications of Cellco
Partnership d/b/a Verizon Wireless and Atlantis Holdings, ILC For Consent to Assign or Transfer Control of
Licenses and Authorizations and Spectrum Manager and De Facto Transfer Leasing Arrangements, WT Docket No.
08-95, Memorandum Opinion and Order and Declaratory Ruling, 25 FCC Red 8704, 8734-8735, at 68 (2008)
(Commission lacked sufficient information on the availability and nature of ATC service to include MSS/ATC in its
competitive analysis regarding provision of mobile telephony/broadband).
70 Implementation of Section 6002(B) of the Omnibus Budget Reconciliation Act of 1993, Annual Report and
Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile
Services, Fourteenth Report, WT Docket No. 09-66 (Terminated), 25 FCC Rcd 11407, 11444-45, at I 36-37 (2010)
(Fourteenth Mobile Competition Report).
7 Id. at 11444-45, 37: see also SkyTerra Communications, Inc., Transferor and Harbinger Capital Partners Funds,
Transferee, Applications for Consent to Transfer of Control of SkyTerra Subsidiary, LLC, IB Docket No. 08-184.
FCC File Nos.: TIC-T/C-20080822-00397; SAT-T/C-20080822-00157; SES-T/C 20080822-01089; SES-T/C-
20080822-01088 0003540644 0021 -EX-TU-2008; and ISP-PDR-20080822-00016. Memorandum Opinion and
Order and Decla/oratory Ruling, 25 FCC Rcd 3059, 3078-79, 3080-85, 3086-87, at 33-36, 40-54, 60 (lB. WTB,
OET 2010) (Sky TerraHarbinger Order), reconsideration pending.5720
Federal Communications Commission
FCC 11-57
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc52169/m1/892/: accessed April 23, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.