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Public Interest groups & small wireless companies ask US Supreme Court for help

Public policy can make strange bedfellows.  On network neutrality, some of the 22 organizations and entities I filed a US Supreme Court brief for today are on opposite sides of the issue.

Today, they got together to ask the Supreme Court to help small, women and minority owned wireless companies compete with the BIG FOUR WIRELESS companies for wireless spectrum.  The spectrum is a public resource, but they are controlled by a small minority of companies.

Got a quick moment? Here is the story…

Last year, for the first time in 14 years, the FCC decided that it could not say definitively that there was competition in the wireless industry. Years ago, to encourage competition and enable small businesses, including those owned by women and minorities to be able to compete with the big guys, the FCC put into place a series of incentives, protections and programs.  It has since dismantled all of them except the Designated Entity (DE) rules.  These DE rules were designed to help smaller companies be able to become wireless operators by giving them bidding credits.

It used to work.  Historically, small businesses were able to win 74 percent of licenses on average!!

But in 2006, without any notice whatsoever and without giving the DEs a chance to comment, the FCC implemented new rules it said were put in place to deter DEs from flipping licenses to large telecommunications operators or bidding for spectrum only to lease it to big telcos.   However,  what that  change in the rules late in the game did was  dry up venture capital investment.  As a result, many companies could not bid in the auctions and many pulled out.  In one auction, for example of the $19 billion of licenses won, minorities acquired just $5 million, or three hundredths of one percent of the auction value (0.03%). Women-owned companies got 0 spectrum, shamefully.

This afternoon, I filed an Amici Curiae brief on behalf of  8 small wireless companies and 14 national nonprofit organizations (see list below).  Some of the companies lost their chances to bid because of the rule change.  The nonprofits on the brief advocate for the ability of small, women and minority owned businesses to own telecommunication spectrum & be able to compete in the digital space.

The Amici brief is in support of the petitioner’s brief filed last December by a coalition that includes company that invests in wireless businesses called Council Tree Investors; the Minority Media and Telecommunications Council and a  Native American  village that was going to bid for spectrum in order to provide wireless services to the people in the town, Bethel Native Corporation.

Had the FCC given  notice before changing the rule, those companies would have had ample time to let the agency  know what  the unintended consequence of its actions would have been.

Council Tree and others took the FCC to court, the U.S. Court of Appeals for the Third Circuit, to be precise.  That court sided with them, for the most part, and overturned two of the Rules but sided with the FCC on one.  However, what the court did not do is provide any remedy for the winning parties.  The Court said it didn’t want to upset the big guys’ plans as they had already  started to build out their businesses with spectrum they won during the faulty auctions.

Okay, fine, understood.  But there are other remedies available and the Court should have at least told the FCC to make those parties whole somehow.  Indeed, there  are creative alternatives available, such as a additional credit for future auctions, setting up a fund or something, but to provide them with no remedy whatsoever? Not fair. Not equitable.

With the future being wireless, and all the talk about spectrum efficiency and reallocation of spectrum to make room for new services and markets, it would be a shame if the FCC doesn’t provide some sort of credit or other remedy to small, women and minority-owned wireless companies that want to take advantage of these new opportunities and participate in future auctions.

I am praying, meditating, crossing my fingers and toes in hope the Supreme Court picks up the case and agrees to hear it.

We made a sound case, if I do say so myself. Check out the brief by Clicking HERE!

Below is a list of the clients I filed on behalf of….

COMPLETE AMICI CURIAE

Small Wireless companies:
Antares Holding, LLC
Business Intelligence Solutions
Brian O’Reilly
Dempster Group, LLC
Faithfone Wireless, Inc.
Gilbert H. Scott, Sr.
Kinex Networking Solutions, Inc.
Rocking “R” International, Inc.

Public Interest Organizations
Asian American Justice Center (“AAJC”), a member
of the Asian American Center for Advancing Justice

Benton Foundation

Media Access Project

Media Alliance

National Association for the Advancement of Colored
People (“NAACP”)

National Association of Multicultural Digital
Entrepreneurs

National Hispanic Media Coalition (“NHMC”)

National Indian Telecommunications Institute
(“NITI”)

National Organization for Women Foundation
(“NOW Foundation”)

National Urban League

Office of Communication of the United Church of
Christ, Inc. (“UCC”)

Public Knowledge

Rainbow PUSH Coalition

Women’s Institute for Freedom of the Press
(“WIFP”).

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