To fully achieve the benefits this transaction will make possible, the public interest compels renewal of all of FiberTower’s licenses. Today, Fiber Tower’s spectrum is either unused or underutilized for limited point to point transmission services. Indeed, the bulk of FiberTower’s licenses are the subject of litigation relating to renewal applications filed before the rules for the 24 and 39 GHz bands were changed to encourage the development of 5G services.27 These applications are before the Commission on remand. With its 5G evolutionary strategy firmly in place, AT&T will be able to rapidly develop and deploy FiberTower’s assets, provided that the Commission acts swiftly on remand, and renews the licenses to allow them to be put to use for 5G services.28
Swift Commission action to clear up the remaining litigation and make these licenses usable for 5G services would be consistent with the Commission’s recent approach in the Straight Path matter.29 In that case, the Commission concluded that although Straight Path “had not actually deployed equipment with any permanency,” its licenses should not be automatically terminated, as the Commission’s discontinuance rules would otherwise dictate.30 Citing the important public interest benefits to be gained from allowing Straight Path’s mmW spectrum to be deployed as quickly as possible, the Commission determined that Straight Path should retain approximately 80 percent of its licenses with the expectation that Straight Path would attempt to sell its portfolio to a third party within 12 months.31 By allowing Straight Path to retain and transfer or assign its 39 GHz licenses, the Commission sought to ensure that the spectrum is quickly put to productive use in furtherance of the 5G transition.
The same 5G policy considerations that led the Commission to allow Straight Path to retain the vast majority of its licenses apply with even greater force in this case. Indeed, equity compels similar regulatory treatment for FiberTower’s licenses, albeit without the enforcement penalties. The Commission’s initial determinations about FiberTower’s renewal applications and waiver requests were based on assumptions about market demand and deployment that turned out to be inaccurate.32 Moreover, FiberTower consistently worked in good faith to meet the Commission’s buildout rules, invested hundreds of millions in developing and deploying service, and has been forthright with the Commission in its filings and applications. 33 In addition, FiberTower has now reached an agreement with AT&T, a company that has the technological and financial ability to rapidly develop and deploy 5G technologies and services.
By renewing FiberTower’s licenses pursuant to the D.C. Circuit remand as part of this transaction, the Commission would avoid the potential for further litigation that could tie up FiberTower’s spectrum and prevent its use for 5G. As it did in the Straight Path matter, the Commission should instead act quickly to resolve the ongoing litigation in a way that would make the spectrum immediately deployable for 5G. When it comes to 5G, time is of the essence. The Commission should lift the “regulatory bottleneck” surrounding FiberTower’s licenses and unleash the spectrum for 5G use.34 Further, as explained below, there are no potential harms— competitive or otherwise—that would result from approval of this transaction.
