Earth Station Owners Face Irreparable Harm Without A Stay; Stay Would Not Prevent Dec. 8 FCC Auction From Proceeding
PITTSBURGH, Sept. 8, 2020 – ACA Connects urged a federal court to block the Federal Communications Commission from requiring earth station owners to make a key decision by Sept. 14 with respect to clearing a segment of the C-Band airwaves for future use by 5G wireless communications providers.
The FCC has given earth-station owners until next Monday to decide whether they want to have satellite operators procure equipment and perform necessary upgrades for earth-station owners to continue receiving C-Band service, or whether they want to accept a lump-sum payment that can be used to clear the portion of the C-Band in other ways, such as by replacing satellite reception with fiber.
The FCC’s Wireless Telecommunications Bureau (“WTB”) announced the amount of the lump sum on July 30. ACA Connects filed an application for review asking the full FCC to review the WTB’s determination, which the FCC has not yet ruled on.
In light of the impending Sept. 14 deadline for choosing between paid-for relocation or the lump sum, ACA Connects filed a petition with the U.S. Court of Appeals for the District of Columbia Circuit on August 27, asking the court to bar the FCC from enforcing the Sept. 14 deadline pending a decision on ACA Connects’ application for review and any necessary judicial review.
In today’s court filing, ACA Connects responded to arguments made by the FCC and others in opposition to the petition. ACA Connects explained that it would likely succeed in its challenge to the lump-sum amount. The WTB’s lump-sum payment excluded the cost of acquiring compression equipment called integrated receiver/decoders (IRDs), which reduced the size of the lump sum by about $280,000 per earth station.
The C-Band regulations adopted by the full Commission, however, require that the lump sum be equal to the estimated cost of earth-station migration and filtering, including the cost of any necessary changes that allow the uninterrupted reception of service by incumbent earth stations. The WTB’s exclusion of IRD costs left earth-station owners with a lump sum that was a fraction of what the regulations require.
The WTB also improperly determined the lump-sum amount in a secretive process. It refused to disclose its methodology, despite ACA Connects’ repeated requests. And it relied on undisclosed information obtained from meetings with undisclosed third parties, from which ACA Connects was excluded.
ACA Connects also explained that, absent a stay, earth-station owners would suffer irreparable harm by being forced to make an “irrevocable” election based on an unlawfully determined lump-sum amount. By failing to afford equal treatment to relocation and fiber as required by FCC regulations, the WTB’s lump sum will force ACA Connects members to decline the lump sum and forgo the benefits of fiber — such as improved broadband access for the communities they serve.
“If not stayed, the irrevocable lump-sum election will impose irreparable harm on ACA members by denying them the ability to make economically efficient decisions about their technological futures,” ACA Connects President and CEO Matthew M. Polka said. “The lump sum was designed to allow MVPDs to choose the more efficient option that better accommodates their needs by providing equal support to both relocation and fiber. The FCC’s Wireless Telecommunications Bureau’s deficient lump-sum determination defeats that efficient decisionmaking.”
ACA Connects also explained to the court that a stay will not interfere with the December 2021 deadline for clearing the first portion of the C-Band, or with the C-Band auction set for this December 8. Instead, a stay and expedited resolution of ACA Connects’ challenge to the lump-sum determination will eliminate uncertainty about earth station operators’ transition needs and help ensure that ACA Connects’ members are able to make efficient decisions that benefit their customers and the public at large.