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Today, the U.S. Court of Appeals for the D.C. Circuit remanded the SNR Wireless v. Federal Communications Commission case to the FCC.
Petitioners SNR Wireless and Northstar Wireless borrowed billions of dollars from DISH Network Corporation to acquire spectrum in the FCC’s 2014 spectrum auction. Both SNR Wireless and Northstar attempted to benefit from the agency’s small business “bidding credits,” under which small businesses can qualify as “designated entities” (DEs) eligible for up to 25 percent off their bids. The total DE credit for SNR Wireless and Northstar amounted to a savings of $3.3 billion.
The FCC denied the application of SNR Wireless and Northstar for designated entity (DE) status. The FCC found that the loan agreements and contracts between DISH, SNR Wireless and Northstar gave DISH so much control of SNR Wireless and Northstar that they were essentially part of DISH and not small business entities. The FCC denied the request of DISH, SNR Wireless and Northstar for permission to modify the contracts to provide sufficient independence for SNR Wireless and Northstar to qualify as DEs.
The following can be attributed to Harold Feld, Senior Vice President at Public Knowledge:
“We’re extremely pleased that the D.C. Circuit agreed with our analysis that although the FCC had the authority to deny the small business credit, the agency should have given DISH Network, SNR Wireless and Northstar a chance to remedy the problem. As we noted in our amicus brief, the small business credit put licenses in the hands of new competitors and constituted the single largest win of FCC licenses by minority-owned businesses like SNR Wireless and Northstar.
“We hope that the FCC will move expeditiously to negotiate with DISH Network to provide adequate independence to SNR and Northstar to qualify as ‘designated entities’ (DEs) and provide the contested licenses to SNR and Northstar. This will put the spectrum into productive use on behalf of potential new and disruptive wireless competitors.
“To the extent people feel DISH Network unfairly exploited a loophole in the auction, the FCC has long since closed the loophole. It's time to put this matter to rest and get the spectrum out as quickly as possible for consumers to benefit from new wireless competition.”
You may view our amicus brief here.