Dish, SpaceX trade shots in 12 GHz fight

The fight for the use of the 12 GHz band remains as hot as ever as spectrum licensees like Dish Network contemplate its usefulness for 5G while SpaceX argues it’s already being used for satellites.  

According to SpaceX, the 12 GHz band has been a dramatic success story for the FCC. The band is used by SpaceX for its Starlink constellation, where it’s invested hundreds of millions of dollars.

“The band is used by multiple licensees across multiple services,” SpaceX told the commission in a November 6 filing (PDF).

But Dish says SpaceX “mischaracterizes” the nature of its own authorization in the band. One big thing that SpaceX is ignoring, according to Dish, is SpaceX’s ability to use the band was predicated on the outcome of any future 12 GHz rulemaking the commission might commence.

Dish and other Multichannel Video and Data Distribution Service (MVDDS) licensees petitioned the FCC in 2016 to open a Notice of Proposed Rulemaking (NPRM) and consider new rules for the band to make it more 5G friendly. 

The 12 GHz band offers 500 megahertz of contiguous spectrum that, they’ve suggested, could go a long way to fulfilling the need for mid-band 5G spectrum in the U.S.

“Just like SpaceX and OneWeb, every other Ku-band authorization is conditioned on the outcome of the 12 GHz petition,” Dish told the commission in a November 12 filing (PDF). “SpaceX’s modification grants are also conditioned on rules and policies the Commission may adopt in the future. The implication of SpaceX’s position – namely, that is has superior 12 GHz rights relative to terrestrial operators compared to OneWeb – is therefore illogical and unwarranted.”

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In a filing last week (PDF), SpaceX blasted the logic of Dish and others in the proceeding, saying their reasoning would all but invalidate any certainty provided by the commission’s licensing authority. 

“Under Dish’s suggested standard, if any party filed a petition for rulemaking to permit new operations in any spectrum band, for example AWS-4, the Commission would be obligated to initiate a rulemaking in response,” SpaceX wrote. “In fact, under Dish's logic, opposition to the petition would only ‘raise new questions’ that strengthen the case for immediate Commission action, meaning current licensees such as Dish could only build out their networks at their own risk. Obviously, such a standard would destabilize the regulatory certainty businesses require to invest the billions of dollars needed to deploy new networks. Ultimately, the consumers of these networks, such as those that currently rely on SpaceX’s network, would be left behind.”

However, according to RS Access, which is another MVDDS licensee, SpaceX and other satellite companies have known full well that their use of the band could be affected by the outcome of the MVDDS Coalition’s petition for rulemaking, and they should have planned accordingly.

RS Access says it’s clear that the FCC warned SpaceX that its access to the 12 GHz band, and only this band, is conditioned on the outcome of a pending petition and potential NPRM.  

“The record is clear, and the attempted obfuscation must end: SpaceX’s authorization to operate in the 12 GHz band is subject to specifically documented conditions related to the pending petition and the explicit contemplation of an NPRM,” RS Access wrote. “The Commission has informed SpaceX and all other Ku-band NGSO FSS authorization holders that their grants of authority would remain conditioned on the outcome of pending rulemaking proceedings and specifically cited the MVDDS 5G Coalition’s 2016 petition for an NPRM to consider modernizing the 12 GHz band.”

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Democrats have called on Republican FCC Chairman Ajit Pai to pause any controversial activity during the presidential transition period. The commission’s next open meeting is November 18, and a 12 GHz item is not on the agenda. Two more open commission meetings are scheduled for December 10, 2020, and January 13, 2021, before the inauguration on January 20, 2021.