WASHINGTON-A federal court of appeals on Friday upheld the Federal Communications
Commission’s spectrum cap. The decision comes as the FCC is examining whether to remove the restriction that limits
carriers to 45 megahertz in a given geographic area.
BellSouth Wireless Inc. had challenged the spectrum cap after
the FCC denied a BellSouth waiver request. BellSouth had argued it needed a waiver because RAM Mobile, in which
BellSouth owns a 49-percent interest, had a number of five megahertz 900 MHz specialized mobile radio licenses. The
waiver was necessary, BellSouth said because the spectrum cap prevented it from bidding on two 10 megahertz
packages of personal communications services spectrum because these SMR licenses combined with its 25 megahertz
of cellular licenses would put it over the limit.
The waiver should be allowed, BellSouth argued to both the FCC and
the U.S. Court of Appeals for the District of Columbia Circuit, because RAM Mobile offered only data services. This
argument was rejected by the FCC and the appeals court because of the convergence of voice and data.
“We
are disappointed the court saw fit to uphold the FCC decision to prevent BellSouth from acquiring the sliver of
additional spectrum we needed-at the time-to offer an innovative wireless data communications service,” said
William Barfield, BellSouth’s associate general counsel.
The wireless industry is split on the need for the spectrum
cap with The Cellular Telecommunications Industry Association urging the FCC to forbear from enforcing the cap
while the Personal Communications Industry Association has said the caps are necessary to foster new
competition.
PCIA applauded the decision. “The court correctly recognized that SMR, broadband PCS and
cellular licensees are competitors in this marketplace, and that no one company should be allowed to hold more than 45
megahertz of these types of spectrum in any given area. The court’s decision is a victory for consumers,” said
Mary McDermott, PCIA senior vice president and chief of staff of government relations.
The court of appeals was a
busy place for the wireless industry last Friday. Following the release of the spectrum cap decision, the court heard oral
arguments in a case pitting CTIA against the FCC on the issue of universal service.
