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In this proceeding, EchoStar reasonably relied on the Commission’s actions and representations when, on September 17, 2024, the agency granted an extension of wireless network buildout milestones regarding certain spectrum bands on the condition that EchoStar fulfill certain public interest commitments, including by directing its resources to specific bands and areas. By doing so, the public benefitted from the accelerated deployment of EchoStar’s 5G OpenRAN network to 80% of the U.S. population by the end of 2024. EchoStar reasonably directed its finite resources based on the expectation that the grant of extensions for its buildout milestones in certain spectrum bands was valid and would be honored. Denying the reconsideration petition would protect EchoStar’s investment-backed expectations. A rescission of the grant of network buildout deadline extensions also would create uncertainty for regulated parties in other agency proceedings who rightly would question the reliability of the Commission’s representations and decisions.
Moreover, denying the reconsideration petition would benefit the public interest by enabling EchoStar’s continued deployment of 5G Open RAN technology which, along with promoting innovation, increases supply chain diversity. The Commission has recognized that some of the largest 5G wireless network equipment manufacturers are Chinese entities that are under the influence of the Chinese Communist Party (CCP), posing counterintelligence and national security concerns. Indeed, the agency has implemented costly – but nevertheless warranted – initiatives to “rip-and-replace” Chinese 5G equipment from U.S. broadband networks.
The Commission similarly has recognized the need for market-ready alternatives to compromised Chinese-manufactured 5G equipment, including the potential for software-based alternatives such as Open RAN. As Commissioner Nathan Simington stated in his address to the Open RAN Solutions Showcase hosted by the Commission in July 2021: “I believe that there are immense public interest benefits of ORAN-enabled networks, including the potential for increased network and supply chain security and innovative new market entrants.”
By facilitating the development of Open RAN technology, the U.S. also can facilitate other nations’ deployment of 5G networks that are more secure, in furtherance of U.S. economic and national security interests. As then-Commissioner Carr recognized in 2021, with Open RAN, the components of the network "do not have to be built and integrated by one company." He continued: "As a policymaker, I think this is attractive for three main reasons: service, jobs, and security:" Those objectives cited by now-Chairman Carr are strongly implicated by EchoStar’s deployment of 5G Open RAN and they weigh against granting the reconsideration petition.
Additionally, denying the reconsideration petition would benefit American consumers. Of course, from a free market perspective, the additional competitive choice offered by EchoStar serving as a fourth facilities-based terrestrial wireless network provider should promote lower prices, higher service quality, and innovation. Indeed, the Commission’s 2019 T-Mobile/Sprint Order recognized the “significant public interest benefits” promised by EchoStar’s construction of a nationwide 5G wireless broadband network. Constructing a competing nationwide 5G wireless network is a challenging, expensive, and risky undertaking that few likely would undertake. EchoStar has taken up this daunting challenge and deployed over 24,000 5G sites that cover over 80% of Americans. But rescinding the grant of network buildout deadline extensions and pulling its spectrum licenses likely would cause as much as 80% of consumers to lose the choice of a fourth facilities-based terrestrial wireless competitor. Accordingly, the public interest in promoting competition from a fourth facilities-based provider favors denying the reconsideration petition.
Furthermore, public harm would result from the inevitable litigation and unavoidable administrative delay that would be caused by rescinding the grant of extension on build-out requirements, taking away EchoStar’s spectrum licenses, and reauctioning those licenses to other parties. Costly litigation over spectrum licenses can take years, during which time the spectrum is not utilized – or underutilized, as the incentive to invest is likely to be reduced significantly by legal uncertainty. Also, conducting spectrum license auctions is a time-consuming process, including complex administrative tasks such as ensuring the spectrum has been cleared, setting auction dates and rules, reviewing applications and bids, and issuing the licenses to bid winners. These likely public harms weigh against the Commission granting the reconsideration petition.
In sum, assuming the extension grant was proper, given the 5G network build-out milestones that EchoStar already has achieved and the considerable likely benefits to America's consumers and to the national interest, the reconsideration petition should be denied.
A PDF of these reply comments is here.
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