The U.S. Court of Appeals for the D.C. Circuit has backed the FCC's decision that Northstar Wireless and SNR Wireless were under Dish's control when they successfully bid $13 billion in wireless licenses in the AWS-3 auction, and thus did not qualify for the over $3 billion in bidding discounts that brought the price down to $10 billion.
The two companies teamed with Dish to acquire $10 billion worth of spectrum licenses in the auction. But the FCC subsequently concluded that Dish's majority financial interest in the companies were controlling interests that should be attributable to Dish, which meant the companies were ineligible for the $1.9 billion (Northstar) and $1.4 billion (SNR Wireless) bidding credits they had applied for.
Dish had put up most of the $10 billion.
The companies appealed the FCC decision to the D.C. Circuit, which in August 2017 upheld the finding that Dish exercised de facto control, but also held that the FCC, under then chair Tom Wheeler, failed to notify the companies that if the FCC found they did not qualify for the credits, worth billions of dollars, the FCC would not give them a chance to cure that problem and instructed the FCC to correct.
The FCC provided that chance to cure the problem, but still ruled the subsequent new filings did not change its conclusion that Dish was both he biggest investor and in de facto control of Northstar and SNR and so did not deserve the designated entity bidding credit.
Also: Dish Makes Case for AWS-3 Bids
The companies then challenged that 2020 decision (under Republican Chairman Ajit Pai) in the D.C. circuit, saying the FCC "flouted this court’s orders in SNR Wireless by not working closely enough with them to reduce Dish’s control, wrongfully found them to be controlled by Dish, and penalized them without fair notice."
Wrong, wrong and wrong, the court said Tuesday in upholding the FCC. It said the FCC had provided the requisite opportunity to cure and "reasonably applied its precedent to the companies and gave them fair notice of the legal standards that it would apply in analyzing their claims to be very small companies," claims the FCC rejected. ■
