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The FCC's "Do Over" Auction?

A much under-reported part of the high drama behind the FCC's current 700 MHz auction rules is that there is a very substantial risk that this becomes known as the "do over" FCC auction.

First, to any outside observer, the FCC's highly-tailored auction rules appear to have a pretty obvious "set aside" for the Google camp and its proposed net neutrality/open access business model for a third of the 700 MHz spectrum.

  • The FCC reportedly is "hedging its bets" on the Google set aside license -- worried that its policy experiment may fail to raise the revenue for the US Treasury that is estimated in the US Budget -- so it is imposing a "reserve price" -- in English, a price floor for this new set aside spectrum open license -- to supposedly guarantee the taxpayer 70% of what an "open" auction would deliver.
    • Some could characterize this FCC-signaled minimum acceptable price for the "Google-set-aside license" as a fixed 30% discount from the price paid at the AWS auction price. However, the real discount is much larger than 30% because the AWS spectrum is no where near as robust or valuable than the 700 MHz spectrum.
  • There are a lot of reasons that Google or others will not bid billions for open access spectrum.
    • First, it is likely not worth it.
      • It's an untested and unproven business model that offers little opportunity to earn a return on the roughly $10b it would take to build and operate such a national network.
      • Most professional and independent investors will ask the blunt and pointed question: how does the 700 MHz set-aside-licensee expect to make money building a highly-capital-intensive wireless-facility model that has dramatically less business and operating flexibility than the other seven existing broadband competitors that have many years head start, and when the cost of acquiring just one new customer could easily be in the $200-400 range on average?
      • What's wrong with that investment and business pitch?
        • It's a money pit.
        • It's dotcom bubble pixie dust.
        • It's a loser.
      • Net neutrality/open access, while cloaked in consumer terms, is basically an old-style industrial policy and corporate wealth transfer scheme from the risk-taking capital-intensive builders of wireless facilities to high-profit tech applications companies like Google, eBay and Amazon, companies who seek for consumers to pay for the bandwidth that they would profit the most from.
    • Second Google is not getting the wholesale resale and unbundling mandates they requested, so their highly-publicized offer to bid $4.6b is moot.
    • Third and most important, why would Google want to become a facilities-based, capital intensive wireless provider?
      • Such a move would change their business model and virtually none of Google's existing growth shareholders would want the dilution and huge capital and operating cost spikes required for Google to become a wireless carrier.
        • It's not going to happen.
        • Google's promise to bid will probably go down in FCC history as one of the best "head fakes" of all time.
    • In short, the FCC has chosen a new policy path that has substantial risk of not generating the revenue expected -- requiring a "do over" of the auction.

Second, there is substantial legal risk that the FCC does not have the authority to condition these licenses in a way that limits an "open" auction and substantially reduces the revenue for the US Treasury.

  • Verizon has written a 22 page ex parte letter to the FCC explaining why the FCC is at substantial legal risk with its proposed set-aside, open-access/net neutrality licenses.
    • "Adopting any form of "open access" in this docket would violate the Administrative Procedure Act and the auction statute in multiple respects, violate the First Amendment, exceed the Commissions's statutory authority on numerous grounds, and violate both FCC and Congressional policies applicable to both wireless service in general and broadband in particular."
    • Anyone who dismisses the substantial legal risk facing this 700 MHz auction has not read Verizon's persuasive and comprehensive legal filing.
      • Verizon would have to prevail on only one of their multiple legal claims to make this a "do over" auction.
      • As I explained in a previous post, it appears that the FCC is not learning from their past disastrous experience with the NextWave auction which resulted in 30 MHz of prime spectrum laying fallow for almost a decade in legal limbo.

In sum, there is very substantial uncertainty and risk in the FCC diverting substantially from the rules in previously successful auctions like the recent AWS auction.

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