Cruz, Thune Urge FCC Reconsider Withholding T-Mobile 2.5 GHz Licenses Amid Bill Hiccups

Senate Commerce Committee ranking member Ted Cruz, R-Texas, and Communications Subcommittee ranking member John Thune, R-S.D., pressed the FCC Monday to reconsider its decision to hold off on awarding T-Mobile more than 7,000 spectrum licenses it bought last year in the commission’s 2.5 GHz auction while its sales authority remains lapsed. “The FCC appears to be holding onto T-Mobile’s $304 million payment while providing nothing in return,” the GOP leaders said in a letter to Jessica Rosenworcel we obtained first ahead of its release. “If it had been a private company that accepted payment and then refused delivery of goods or services, a customer would be well within its rights to sue for breach of contract. This circumstance is similar, but it is perhaps even more egregiously unfair given the power dynamics: a government regulator is withholding a legitimately obtained good from a regulated entity.”

A Senate GOP aide told us Cruz and Thune didn’t send the letter at T-Mobile’s behest. T-Mobile has repeatedly asked the FCC to grant the 2.5 GHz licenses amid what’s become a multimonth fight on Capitol Hill over reinstating the FCC’s auction mandate while talks on a broader spectrum deal have continued. A range of other communications policy stakeholders are also backing T-Mobile, including the Digital Progress Institute, Free State Foundation and Public Knowledge.

The FCC “should do what it can to ensure that this valuable mid-band spectrum is put to use as quickly as possible,” but if the commission does “not act promptly to issue these licenses, we request a full accounting for your failure to do so,” Cruz and Thune said. They in part want the FCC to provide by Aug. 28 a detailed “legal reasoning for not granting temporary licenses under every source of special temporary authority” available under the Communications Act apart from the expired auction mandate under Section 309(j). The FCC argued as recently as July it couldn’t grant STAs for the 2.5 GHz licenses because of the Section 309(j) lapse, while T-Mobile argues the commission must grant them under Communications Act sections 307 and 309(a) if the body finds such an action to be in the public interest.

“While you claim to be unsure of the FCC’s authority to grant these licenses due to the lapse of FCC spectrum auction authority, legal experts have held that the FCC retains power to grant licenses irrespective of whether it has authority to auction spectrum,” Cruz and Thune told Rosenworcel. “However, this authority did not necessarily displace the FCC’s preexisting power to issue licenses after mutual exclusivity concerns had been resolved. Such a reading of the law is supported by the Commission’s own practices: following review of an auction winner’s ‘long-form application’ … the Commission has historically granted licenses pursuant to its authority to grant licenses under section 309(a) rather than its authority to conduct spectrum auctions under 309(j).”

T-Mobile “has already won its bids in the 2.5 GHz auction, paid for the licenses it won, and submitted its long form application,” Cruz and Thune said. “There appears to be no reason why the FCC should not be able to similarly use its 309(a) authority to issue the licenses here.” Even if the FCC “harbors doubt about its authority to grant the pending licenses until its authority under Section 309(j) is restored, there should be no question that the FCC can provide access to 2.5 GHz spectrum” via STAs, the GOP senators said: “The FCC’s ability to issue temporary authorizations is independent of and predates its authority to act under section 309(j). Moreover, the Commission has routinely granted special temporary authority for other bands after auction authority expired.”

“By withholding these licenses, the Commission is forcing the spectrum to unnecessarily lie fallow and depriving communities across the country, particularly in rural areas, of better mobile service,” Cruz and Thune said. “According to T-Mobile, putting the 2.5 GHz spectrum to use would bring high-speed broadband to over 900,000 unserved locations.” That ‘will in turn pay dividends for economic growth: at least one study shows that allowing T-Mobile to use the spectrum it won via auction would generate tens of billions of dollars in economic activity,” the GOP senators said.