The US Court of Appeals for the District of Columbia Circuit has ruled in favour of the Federal Communications Commission (FCC) in its long-running legal battle with DISH Network over the price of spectrum acquired back in 2014/15. The dispute centres on Northstar Wireless and SNR Wireless – a pair of Designated Entities (DEs) affiliated with DISH – which placed more than USD13 billion in winning bids during the FCC’s Auction 97 sale process for AWS-3 spectrum.
The court document explains: ‘Because both Northstar and SNR were brand new companies with virtually no revenue, they each claimed the 25% discounts on their winning bids that the Commission offered in such auctions to very small businesses. After the auction concluded, though, the FCC determined that neither company was eligible for the very-small-business discount because both were de facto controlled by their biggest investor, the large telecommunications company DISH Network.’
In 2017 the Court of Appeals affirmed the FCC’s order in part, but required the regulator to give the companies a chance to ‘cure the problems in their agreements with DISH’. On 21 June 2022 the ruling judges concluded: ‘We reject the companies’ challenges to the Commission’s orders. The Commission complied with our previous decision by affording the Companies an opportunity to cure. The Commission also reasonably applied its precedent to the companies and gave them fair notice of the legal standards that it would apply in analysing their claims to be very small companies.’
If the attempt to exploit the loophole had succeeded, the two companies would have seen their collective bill slashed from USD13.3 billion to USD10.0 billion.