BEFORE THE FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554

In the Matter of ) ) Office of Economics and Analytics and ) Wireless Telecommunications Bureau ) Seek Comment on the Requests of ) AU Docket No. 19-244 Comcast Corporation and ) Midcontinent Communications for Waiver of ) The Commission’s Rules for Auction 105 ) )

COMMENTS OF NCTA – THE INTERNET & TELEVISION ASSOCIATION

NCTA – The Internet & Television Association (NCTA) submits comments in the above- referenced proceeding to support the waiver requests filed by its members, Midcontinent

Communications (Midco) and Comcast Corporation (Comcast) which, if granted, would allow these companies each to file separate applications to participate in the 3.5 GHz auction.1 Waiver of the Commission’s commonly controlled entity rule for the 3.5 GHz auction in this limited instance would serve the public interest by (1) increasing the number of potential bidders able to participate in the auction, which would help to maximize auction revenue to the Treasury and promote a successful auction; and (2) expanding rural broadband buildout opportunities and reducing the digital divide, as allowing participation by Midco would enable it to bid for spectrum licenses that could help the company serve additional customers in its rural footprint.

Moreover, as applied here, the purpose of the commonly controlled entity rule to prevent collusive or anticompetitive bidding behavior would not be served, as Comcast and Midco

1 Petition of Comcast Corporation for Waiver – Expedited Action Requested, AU Docket No. 19-244 (filed Apr. 15, 2020) (Comcast Petition); Letter from Christina H. Burrows, Counsel to Midcontinent Communications, to Marlene H. Dortch, Secretary, FCC, AU Docket No. 19-244 (filed Apr. 15, 2020) (Midco Waiver Request).

formed their partnership over 20 years ago for purposes unrelated to the auction, Midco (not

Comcast) exercises de facto control over its operations, and Comcast and Midco have put safeguards in place to ensure that there will be no communications between the companies regarding bidding strategy. In short, grant of the waiver under these facts would produce substantial public interest benefits without creating any of the harms that the commonly controlled entity rule was intended to prevent. NCTA therefore respectfully urges the

Commission to grant the companies’ waiver requests, as it has done previously for other parties in similar circumstances, to enable each company to participate independently in the auction.

The Commission’s auction rules, which apply to the upcoming Auction 105 of Priority

Access Licenses in the 3.5 GHz band, prevent an entity from having a “controlling interest”— defined to include a general partnership interest—in more than one auction applicant.2 These rules are designed to prevent manipulative or anticompetitive bidding practices in the

Commission’s spectrum auctions by commonly controlled entities who could otherwise submit multiple applications and coordinate their bidding strategy to the detriment of other auction participants.3 However, the Commission can waive this and other provisions of its wireless service rules if either:

(i) The underlying purpose of the rule(s) would not be served or would be frustrated by application to the instant case, and . . . a grant of the requested waiver would be in the public interest; or (ii) In view of unique or unusual factual circumstances of the instant case, application of the rule(s) would be inequitable, unduly burdensome

2 47 C.F.R. §§ 1.2105(a)(3), 1.2105(a)(4)(i), 1.2105(b). 3 See Updating Part 1 Competitive Bidding Rules; Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions; Petition of DIRECTV Group, Inc. and EchoStar LLC for Expedited Rulemaking to Amend Section 1.2105(a)(2)(xi) and 1.2106(a) of the Commission’s Rules and/or for Interim Conditional Waiver; Implementation of the Commercial Spectrum Enhancement Act and Modernization of the Commission’s Competitive Bidding Rules and Procedures, Report and Order; Order on Reconsideration of the First Report and Order; Third Order on Reconsideration of the Second Report and Order; Third Report and Order, 30 FCC Rcd. 7493, 7578 ¶ 202, 7580 ¶ 206 (2015).

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or contrary to the public interest, or the applicant has no reasonable alternative.4

NCTA agrees with Comcast and Midco that the Commission would be justified in granting the waiver request under either prong.

With respect to the first prong, the underlying purpose of the rule to prevent collusive or anticompetitive bidding practices would not be served by applying the rule to Comcast and

Midco. The companies formed their partnership decades ago for reasons unrelated to auction participation.5 Comcast does not manage or control Midco or participate in the day-to-day operations of the company.6 To provide further clarity, both companies have instituted safeguards to prevent any communications between them about the auction, including regarding each company’s bidding plans and strategy.7 Without the potential for anticompetitive gamesmanship in the auction, the purpose of the rule would not be served by applying it in this instance. For this reason, and the fact that waiver of the rule would encourage auction participation and prevent unnecessary disqualification, the Commission should waive the rule as it has in similar circumstances.8

4 47 C.F.R. § 1.925(b)(3). 5 Comcast Petition at 2; Midco Waiver Request at 5. 6 Comcast Petition at 3-4; Midco Waiver Request at 2-3. 7 Comcast Petition at 4-6; Midco Waiver Request at 3-5. 8 See Competitive Bidding Procedures for Auction 101 (28 GHz) and Auction 102 (24 GHz); Request of T-Mobile US, Inc. for Confirmation or Waiver of Section 1.2105(a)(2)(ix) of the Commission’s Rules; Petition of Sprint Corporation for Expedited Declaratory Ruling or Waiver of Section 1.2105(a)(2)(ix) of the Commission’s Rules and Request of Sprint Corporation for Limited Waiver of Section 1.2105(b)(2) or Section 1.2105(b)(4) of the Commission’s Rules, Order, 33 FCC Rcd. 8667, 8674 ¶ 15 (WTB 2018); Connect America Fund; Petition of Hawaiian Telcom, Inc. and Cincinnati Bell Inc. for Expedited Waiver of Section 1.21001(d)(4) of the Commission’s Rules; Request of Horizon Telcom, Inc. for Waiver of Section 1.21001(d)(4) of the Commission’s Rules, Order, 33 FCC Rcd. 6208, 6211 ¶ 10 (WCB/WTB 2018).

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Allowing Comcast and Midco to bid separately would also serve the public interest in

various significant respects, including fostering key Commission and congressional goals. The

Commission has highlighted the importance of maximizing auction participation as a mechanism

to ensure the U.S. government receives the highest value for spectrum resources. Unnecessarily disqualifying one of these companies when there is no risk of manipulative auction behavior would undermine that goal. In addition, as Midco discusses in its waiver request, the

Commission also desires to improve rural broadband access.9 This is also a key goal of

Congress, which has become even more pronounced amidst the current COVID-19 pandemic.

Midco has a rural footprint and is committed to rural broadband build-out.10 Preventing Midco

from participating in an auction where it could potentially obtain spectrum licenses to support

expanding its footprint to serve additional rural customers would be contrary to these key

Commission and congressional goals and to the public interest.

Comcast’s and Midco’s requests also satisfy the second prong of the Commission’s

standard for waiver of its wireless service rules. It would be inequitable to each company to

apply the commonly controlled entity rule in this case, and both companies would be left without

a reasonable alternative without grant of the waiver. Neither company can control the other’s

decision regarding whether to file a short form application to participate in the auction that

would bar the other’s participation, and there will be only one Auction 105 in which the

companies could bid to obtain 3.5 GHz licenses.

Waiver of the Commission’s commonly controlled entity rule in this limited instance is

justified under either prong of the waiver standard. NCTA supports Comcast’s and Midco’s

9 Midco Waiver Request at 5. 10 Id.

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waiver requests and asks the Commission to grant them expeditiously to enable both companies

to file short form applications by the May 7th deadline.

Respectfully submitted,

/s/ Rick Chessen

Rick Chessen Neal Goldberg Danielle Piñeres NCTA – The Internet & Television Association 25 Massachusetts Avenue, NW – Suite 100 Washington, DC 20001-1431 (202) 222-2445

May 4, 2020

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