Echostar accuses T-Mo of ‘anticompetitive’ acquisitions

EchoStar, which merged with Dish, wants a national spectrum screen of 25%

Every other year, the Federal Communications Commission asks for input on the state of competition in the domestic communications market, to help inform a report to Congress. This year, EchoStar—now the parent company of Dish Wireless—took the opportunity to accuse T-Mobile US of a series of “anticompetitive” acquisitions and actions, as well as to ask the FCC to impose and enforce a stricter spectrum screen in order to give players other than the three national incumbent wireless operators—like EchoStar—a better chance to compete.

“Excessive spectrum accumulation by incumbent carriers is a significant factor accounting
for the lack of competition in the mobile wireless market, and rampant spectrum accumulation by the incumbents has increased market concentration to the detriment of consumers,” EchoStar declared in a filing with the FCC. The company said that the FCC and Department of Justice recognized “the harms of a three-player market” in the review of the T-Mobile/Sprint merger, in which EchoStar—then Dish Network—was positioned as a fourth, facilities-based carrier. But, the company said, despite its successful build-out of a national network and the technology agility enabled by its choice of Open RAN, its access to spectrum (relative to the other national carriers) is still hindering its competitiveness.

“EchoStar has worked hard to deploy a next-generation network that promotes
competition in the wireless market. But, it has faced constraints that have made it harder to compete against the incumbent carriers. These constraints are in large part imposed by limited spectrum availability, including the Commission’s spectrum aggregation policies and the lax enforcement of those policies, as well as outdated rules that impact the utility of certain spectrum bands,” the carrier wrote in a filing with the Commission.

While EchoStar said that “Together, AT&T, T-Mobile, and Verizon hold the vast majority of the nation’s supply of suitable and available spectrum,” it singled out T-Mobile as being on a “multi-year stampede to further consolidate the wireless industry,” starting with its Sprint merger and extending to additional smaller, private spectrum purchases in the 600 MHz band over the last several years, to its recent acquisition of mobile virtual network operators Mint Mobile and Ultra Mobile, and its intended purchase of UScellular’s operations and a portion of its spectrum. “All of these actions have one thing in common:
they are attempts by T-Mobile to hinder competition in the wireless market,” EchoStar said in the filing.

It should be pointed out that EchoStar had a chance to purchase some of T-Mo’s spectrum, in form of first-right-of-refusal on a nationwide chunk of former Sprint spectrum in the 800 MHz band. The divestiture of that spectrum, with Dish having the option to purchase it, was in fact one of the conditions of the T-Mobile US acquisition of Sprint. As the deadline on that purchase loomed, Dish received additional time in which to gather funds to purchase the spectrum, but ultimately could not afford the cost, and its right to the purchase lapsed. Now, T-Mo is auctioning the spectrum—and EchoStar is complaining that T-Mo won’t let it participate in the auction, believes EchoStar is not allowed to, and won’t even provide preliminary information to EchoStar so that the company could consider its options on participation. EChoStar also questioned whether T-Mo actually intends to follow through on divesting the spectrum at all.

Meanwhile, the acquisition of the Mint and Ultra Mobile MVNOs by T-Mobile “only increases
T-Mobile’s incentives to discriminate against the remaining independent MVNOs,” EchoStar said, adding that the FCC’s conditions on the merger “do not go far enough, especially
in light of the ever-increasing consolidation of the wireless market that T-Mobile is perpetuating.” It also argues that if T-Mo is allowed to acquire more spectrum and scale through the purchase of UScellular’s assets, the competitive landscape for communications will get even worse. “Potential competitors like EchoStar and cable companies have struggled to build competing networks as the largest providers spend billions on spectrum and competitor acquisitions. As a result, the market has become more and more concentrated, making it harder for others to build competing networks,” the company

EchoStar’s preferred remedies for the FCC to take to address the competitive landscape? A spectrum screen of 25% and a low-band-specific spectrum screen of 25%, which it said would be a step toward the goal of maintaining four facilities-based national carriers; allowing higher-power fixed 5G broadband service in 500 megahertz of the 12 GHz band; and authorizing use of higher power levels in the CBRS band.

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