ORBIT Act Could Pose a Problem to MSS Auction, Say Executives
The FCC and/or Congress may have to address a law that prohibits the FCC from using competitive bidding for satellite spectrum before moving forward on mobile satellite service incentive auctions, said industry executives and the NTIA. The Open-market Reorganization for the Betterment of International Telecommunications (ORBIT) Act of 2000 outlawed such auctions to facilitate international coordination of satellite spectrum. While the spectrum in question refers to the reuse of satellite spectrum terrestrially, a 2005 lawsuit on somewhat similar reuse concluded the Act’s language is ambiguous on the auction of the spectrum, officials said. The FCC recently opened a proceeding on how best to encourage mobile broadband investment in the MSS bands, through incentive auctions and other means (CD July 16 p1).
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A recent filing at the FCC on the MSS proceeding from NTIA asks the commission to consider the ORBIT Act as it works on increasing wireless broadband use in the spectrum. “As part of any rulemaking proceeding on using the MSS frequency bands for broadband systems, the FCC should address these and any other issues that are specified in the ORBIT Act,” NTIA said in the filing. NTIA didn’t respond to a request for comment.
Section 647 of the ORBIT Act says “the Commission shall not have the authority to assign by competitive bidding orbital locations or spectrum used for the provision of international or global satellite communications services.” A U.S. Court of Appeals for the D.C. Circuit judge found in the 2005 case, Northpoint vs. FCC, the ORBIT Act statute to be too vague to determine whether it meant to prevent auction of spectrum used for satellite services or all spectrum allocated for satellite and said the FCC could use its discretion on the matter (CD July 18/05 p2). Northpoint had sued the FCC, in part, for auctioning off spectrum allocated to digital broadcast satellite providers for terrestrial wireless broadband use.
One possible way around the ORBIT Act would be for Congress to include provisions that specifically identifies the terrestrial spectrum as separate from the MSS spectrum, said MSS industry executives. The FCC will need Congressional approval to allow spectrum holders to receive portions of the proceeds in an incentive auction and the ORBIT Act issue could be addressed there, the executives said. That would allow the agency to move forward with the auctions with clearer authority over what can be auctioned, they said.
An industry executive said the ORBIT Act may not actually pose an issue for MSS spectrum auctions since the spectrum would be repurposed once licensees turned the spectrum in to the FCC to take part in an incentive auction, reclassifying it as a terrestrial service rather than a satellite service.