Google may ask the FCC to reconsider its decision to drop two conditions, says the company's legal counsel.Google officials are still considering their position on bidding for licenses for the 700 MHz spectrum, which is not scheduled until Jan. 28. The company wont automatically throw its hat into the ring, but officials are giving the auction a lot of thought, according to its lead counsel.
"We need to … have some internal discussion around what it will take to mount a bid in the auction, potential financial backers, potential partners, potential consortium members," Rick Whitt said in an interview with eWEEK. "Those discussions are on-going, but we havent reached any definitive decision at this point."
The search engine company is also deciding whether to pursue an adjustment to Federal Communications Commission Chairman Kevin Martins decision to omit two of Googles four conditions for how the winner must use the spectrum. According to Whitt, these conditions stemmed from a request from Martin himself.
"We were responding directly to Chairman Martins public pitch to use the 700 MHz auction as vehicle for creating new competition in the broadband market, in particular to create a robust third-pipe competitor," Whitt said. "In our view, the only way that could happen effectively is to put in place certain license conditions that ensure whoever won that auction … was as open as possible to different applications devices and networks and would create maximum competition that would benefit consumers."
Although Whitt said he was disappointed with the FCCs partial agreement, it was too soon to tell if Google will make a formal request to the FCC to reconsider the omitted two conditions. He said it is unlikely that Google will take legal action.
But a legal fracas may be brewing, anyway.
"Verizon Wireless, for one, submitted some legal analysis in which they argued that even just the open devices and applications conditions could violate their First Amendment rights and otherwise be contrary to their view of whats lawful," Whitt said. "I think its possible that Verizon or somebody else could decide to take that particular issue to court to have it resolved, and there may well be other parties who are unhappy with other aspects of the many rules that are in that [FCC] order."
If the court overturns the two conditions that Martin has decided in favor of, Whitt said that "might have some impact on our thinking here."
Even if Google, of Mountain View, Calif., does not bid for commercial spectrum, theres the "D block" to consider. The D block is the band of spectrum reserved for a "public/private partnership"—a dual-use frequency to be used by private enterprise yet ceded to the public for use during emergencies.
"The rules around that [block of spectrum] are very complicated … so we need to get a better understanding of that issue before we can make any final determinations," Whitt said.
He said that potential licensees are allowed to bid on both the commercial and the public/private blocks of spectrum. "Bidding for the C block doesnt preclude you from bidding on the D block, and vice versa," Whitt said.
Auction aside, Google may still find itself with spectrum on its hands, in the form of "white spaces," which refer to the unused spectrum between television channels. Google is a member of the White Spaces Coalition, which includes Microsoft, Dell and Hewlett-Packard. Google and other members of the coalition hope to prove that use of the white spaces will not negatively impact current communications. Television companies argue otherwise, but their motivation may be sparked more by fear of broadband video than concerns about interference.
"We remain confident that the FCC, perhaps even before the end of the year, will adopt an order that allows us to move forward on unlicensed use of white spaces," Whitt said.
He gave few definitive answers and quite a few maybes. However, one thing is certain, he said: Much can change before January. "Its hard to say … what factors could influence our thinking before the auction takes place," Whitt said.
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