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May 18, 2015 The Honorable John Thune Chairman Committee on Commerce, Science, and Transportation United States Senate Washington, DC 20510-6125 Dear Chairman Thune: On behalf of DISH Network Corporation (“DISH”), I am responding to your letter dated April 29, 2015, seeking information regarding DISH’s participation in the recent Federal Communications Commission (“FCC” or “Commission”) auction of Advanced Wireless Service (“AWS-3”) spectrum (“Auction 97”). DISH appreciates the opportunity to explain how at all times it fully complied with well-established auction rules and antitrust law. BACKGROUND DISH participated in Auction 97 through its wholly owned subsidiary – American AWS-3 Wireless I L.L.C. (“American I”), and also made an 85 percent indirect, non-controlling investment in each of two designated entities (“DEs”) – Northstar and SNR. 1 As explained below, the bidding activities of American I, Northstar and SNR complied fully with FCC rules and policies, as well as antitrust laws. Moreover, this arrangement helped make the AWS-3 auction the most successful in FCC history, with $41 billion in net revenues for the benefit of public safety and the American taxpayer. The FCC’s Anti-Collusion Rule One of the central themes of your letter revolves around the operation of the FCC’s anti-collusion rule (“Anti-Collusion Rule”). The Anti-Collusion Rule expressly allows parties to bidding consortia or joint bidding agreements (“JBAs”) that are disclosed in the bidding parties’ pre-auction short-form application to cooperate and collaborate on, discuss, and disclose to each other, bids, bidding strategies, and settlement agreements – and that applies to applicants who apply to bid on the same licenses.2 Since establishing the Anti-Collusion Rule to enhance the 1

Subsidiaries of DISH invested in the parent companies of each of Northstar Wireless, LLC (“Northstar”) and SNR Wireless LicenseCo, LLC (“SNR”). 2

47 C.F.R. § 1.2105(c)(1). Specifically, the FCC’s Anti-Collusion Rule provides as follows: “Except as provided in paragraphs (c)(2), (c)(3), and (c)(4) of this section, after the short-form application filing deadline, all applicants for licenses in any of the same geographic license areas are prohibited from cooperating or collaborating with respect to, discussing with each other, or disclosing to each other in any manner the substance of their own, or each other’s, or any other competing applicants’ bids or bidding strategies, or discussing or negotiating settlement agreements, until after the down payment deadline,

The Honorable John Thune May 18, 2015 Page 2 competitiveness of its auctions,3 the FCC has on many occasions confirmed that the existence and disclosure of JBAs, including JBAs that involve licenses sought by JBA parties in the same geographic market, exempt those parties from application of the Anti-Collusion Rule.4 In fact, the FCC has explicitly upheld the use of a JBA in the context of a challenge that the auction was anticompetitive because parties to a JBA were permitted to participate (and won unless such applicants are members of a bidding consortium or other joint bidding arrangement identified on the bidder’s short-form application pursuant to § 1.2105(a)(2)(viii).” (emphasis added). Paragraphs (c)(2), (c)(3) and (c)(4) contain additional exceptions to the rule that apply to agreements reached after the deadline to file applications to participate in an auction. 3

Implementation of Section 309(j) of the Communications Act – Competitive Bidding, Second Report and Order, 9 FCC Rcd 2348, 2387-88 ¶ 225 (1994) (“Competitive Bidding Second Report and Order”) (“[A]ll bidders will be prohibited from cooperating, collaborating, discussing, or disclosing in any manner the substance of their bids or bidding strategies with other bidders, unless such bidders are members of a bidding consortium or other joint bidding arrangement identified on the bidder’s short-form application.”).

4

See, e.g., Implementation of Section 309(j)of the Communications Act – Competitive Bidding, Second Memorandum Opinion and Order, 9 FCC Rcd 7245, 7253 ¶ 48 (1994) (“[A]ll bidders will be prohibited from cooperating, collaborating, discussing or disclosing in any manner the substance of their bids or bidding strategies with other bidders, unless such bidders are members of a bidding consortium or other joint bidding arrangement identified on the bidder’s short form application.”) (citation omitted); Implementation of Section 309(j) of the Communications Act – Competitive Bidding, Fourth Memorandum Opinion and Order, 9 FCC Rcd 6858, 6866 ¶ 47 (1994) (“Competitive Bidding Fourth Memorandum Opinion and Order”) (“[The] Commission [has] prohibited bidders from discussing the substance of their bids or bidding strategies with other bidders, unless such bidders are members of a bidding consortium or other joint bidding arrangement identified on the bidder's short-form application.”) (citation omitted); Wireless Telecommunications Bureau Clarifies Spectrum Auction Anti-Collusion Rules, Public Notice, 11 FCC Rcd 9645, 9645 (WTB 1995) (“Anti-Collusion Rules PN”) (“After the short-form filing deadline, applicants may not discuss the substance of their bids or bidding strategies with bidders, other than those identified on the short-form application, that are bidding in the same geographic license areas.”); Service Rules for the 746-764 and 776-794 MHz Bands, and Revisions to Part 27 of the Commission’s Rules, Third Report and Order, 16 FCC Rcd 2703, 2722 ¶ 45 (2001) (“700 MHz Band Third Report and Order”) (“[A]uction applicants for licenses in the same geographic areas must not communicate with each other during an auction about bids, bidding strategies, or settlements, unless they have disclosed that they are parties to a bidding arrangement . . . .”); 700 MHz Band Third Report and Order, 16 FCC Rcd at 2723 ¶ 47 (“As we have described, disclosure of the parties to any agreements on short-form auction applications also provides a ‘safe harbor’ against allegations that communications in connection with such agreements constitute communications prohibited under the anti-collusion rules”); Wireless Telecommunications Bureau Reminder of Anti-Collusion Rule Obligations, Public Notice, 19 FCC Rcd 22880, 22880 (WTB 2004) (“Section 1.2105(c) of the Commission’s rules prohibits applicants for any of the same geographic license areas from communicating with each other during the auction about bids, bidding strategies, or settlements unless such applicants have identified each other on their short-form applications . . . .”); Auction of Advanced Wireless Services (AWS-3) Licenses Scheduled for November 13, 2014, Public Notice, 29 FCC Rcd 8386, 8392-93 ¶ 11 (WTB 2014) (“Auction 97 Procedures PN”) (“[S]ection 1.2105(c) of the Commission’s rules prohibits auction applicants for licenses in any of the same or overlapping geographic license areas from communicating with each other about bids, bidding strategies, or settlements unless such applicants have identified each other on their short-form applications . . . .”).

The Honorable John Thune May 18, 2015 Page 3 licenses).5 In that instance, the JBA was between two commonly controlled entities that properly disclosed their relationship in their pre-auction applications. In rejecting the petition opposing the grant of the licenses, the FCC stated: Our anti-collusion rules promote a competitive process by prohibiting cooperation or sharing of information regarding bids and bidding strategies between applicants for licenses in the same geographic area unless such applicants disclose on their short-form applications that they are members of a bidding consortium or other joint bidding arrangement. In designing the anti-collusion rules, the Commission has carefully weighed the competitive risks and benefits of allowing auction applicants to cooperate and share resources. The Commission has recognized that one way of promoting competition is to permit entities to enhance their ability to win licenses in auctions by combining their resources and that small businesses in particular may need to pool financial and other resources in order to compete in auctions.6 This same rationale applies to the procompetitive business arrangements between DISH, SNR and Northstar. The Anti-Collusion Rule in Practice: A Case Study In fact, JBAs are commonplace and have been employed at least 36 times before by many auction participants, including Verizon, AT&T, Sprint, VoiceStream, Cingular Wireless, U.S. Cellular, Cricket, Leap, MetroPCS, and many other entities.7 For example, in 2005, during Auction 58, Verizon (Cellco) used a JBA with a DE named Vista PCS, LLC (“Vista”). Verizon (Cellco) owned 80 percent of the equity of Vista8 and Verizon’s (Cellco’s) agreements and structure with Vista mirror closely the DISH, SNR and Northstar structure and multiple DE arrangements approved by the FCC since 2000. Verizon (Cellco) applied to participate in Auction 58 as a bidder on its own account,9 and Vista also filed its own application. Verizon (Cellco) and

5

Petition for Reconsideration and Motion for Stay of Paging Systems, Inc., Memorandum Opinion and Order, 25 FCC Rcd 4036 (2010).

6

Id. 4061-62 ¶ 84 (citations omitted) (emphasis added).

7

Attachment A is a list of previously employed JBAs.

8

Verizon participated as “Cellco Partnership d/b/a Verizon Wireless.” See Cellco Partnership, FCC Form 601, File Number 0002069007, Ex. E at 4 (filed Mar. 4, 2005) (“Verizon FCC Form 601”), https://wireless2.fcc.gov/UlsEntry/attachments/attachmentViewRD.jsp;ATTACHMENTS=36kQVQcMB b3M6ztbSgt9JnQRvDffGg3dVZmTMr4JLqN9gxPmpn0W!1337272869!932366712?applType=search&f ileKey=999110802&attachmentKey=17999071&attachmentInd=applAttach.

9

Id., Ex. E at 1.

The Honorable John Thune May 18, 2015 Page 4 Vista entered into a JBA “pursuant to which [Verizon (Cellco) and Vista] will coordinate their bidding strategies prior to and during Auction 58.”10 Companies have employed different auction strategies when bidding in the context of JBAs. For some, like Verizon (Cellco) and Vista, the strategy appears to have been not to bid against each other for licenses. Verizon (Cellco) and Vista applied to bid for licenses that comprised virtually all of the licenses and geographic markets available in Auction 58. Vista applied for a 25 percent bidding credit for 115 “Open Licenses” offered in Auction 58 (78 of which were available with a 25 percent bidding credit) and also applied to bid on 117 “Closed Licenses,” which were set aside for “entrepreneurs” only (entities that met specific asset and revenue limits set by the FCC) and not eligible for bidding credits.11 In its application, Verizon (Cellco) applied to bid for the same 115 Open Licenses.12 Over 80 percent of the Closed Licenses were located in geographic areas in which Open Licenses were also available. At the close of the auction, Verizon (Cellco) and Vista were the two largest winners in Auction 58 by net dollar value.13 Verizon (Cellco) won licenses valued at $364.9 million, or 18 percent of the net dollar value of licenses sold in the auction, and Vista won licenses valued at $332.4 million, or 16 percent of the net dollar value of licenses sold in the auction, representing a combined total of 34 percent of the net dollar value of Auction 58. This result was achieved through an apparent coordinated bidding strategy by Verizon (Cellco) and Vista that ensured that one entity never bid directly against the other. One example of Verizon (Cellco) and Vista’s apparent coordination of bidding strategies is their approach to the 115 Open Licenses for which both parties were eligible to bid. During the course of the auction, Verizon (Cellco) placed 256 bids on Open Licenses. Vista, by contrast, did not place any bids on those same Open Licenses for which Vista was also eligible to bid based on 10

See Vista PCS, LLC, FCC Form 175, File Number 0581455272, Ex. B at 1 (filed Nov. 30, 2004) (emphasis added). The Verizon (Cellco)/Vista/Valley Bidding Agreement provided that Verizon (Cellco) and Mr. Dwyer (Valley), through an Auction Committee on which they served, “directed all of Vista’s bids and bidding decisions, subject to certain bid limits established in the Agreement” and that the parties had “mutually agreed on the markets in which they would bid and set bidding limits for each of the markets.” The agreement required unanimous consent of the Auction Committee for bids in excess of the authorized bid limits. The agreement “also gave the Committee some discretion to exceed the bid limits or to bid in additional markets under certain circumstances in order to maintain bidding flexibility.” See Vista PCS, LLC, FCC Form 601, File Number 0002069013, Ex. E at 5 and 11-12 (filed Mar. 7, 2005) (“Vista FCC Form 601”), https://wireless2.fcc.gov/UlsEntry/attachments/attachmentViewRD.jsp;ATTACHMENTS=-T20FV2PRK GLj6X58VT11nPCg8ZntGnh6s7csQWJncWKdq6h0jjDv!932366712!1337272869?applType=search&fil eKey=891586978&attachmentKey=17999353&attachmentInd=applAttach.

11

Vista was formed by Cellco and Valley Communications, LLC. See Vista FCC Form 601 at Ex. E at 6.

12

See Broadband PCS Spectrum Auction, Public Notice, 20 FCC Rcd 496, 507-08, 518-19 (WTB 2005).

13

See FCC, FCC Broadband PCS Auction #58 **Final** Bidder Data For Round 91 (Feb. 15, 2005) (showing High Bids in the final round of Auction 58), http://wireless.fcc.gov/auctions/58/charts/-58press6.pdf.

The Honorable John Thune May 18, 2015 Page 5 its upfront payment (and for many of which Vista was also eligible for a 25 percent DE bidding credit). Instead, Vista placed all of its 203 bids on Closed Licenses. As a result, while Verizon (Cellco) and Vista collectively placed 459 bids in Auction 58, on no occasion did they compete against each other to bid on an Open License for which each was eligible to bid. Within specific markets, Verizon (Cellco) and Vista appeared to employ further coordination. For example, there were five geographic markets14 in which (a) Verizon (Cellco) bid on the 10 MHz Open License, and (b) Vista bid on one of the two available Closed Licenses (10 MHz each). Verizon (Cellco) and Vista were, on 279 occasions, the high bidder on 10 MHz of spectrum in the same market at the same time, demonstrating their apparent collective interest in acquiring 20 MHz of spectrum in each of those markets. At any time during the auction, Vista itself could have acquired two Closed Licenses in order to satisfy the 20 MHz goal. However, even though Vista frequently alternated its bids from one Closed License to the other in a given market, at no time did Vista ever place bids on both of the Closed Licenses at the same time. The Verizon (Cellco)/Vista example is just one of many. The type of bidding coordination that Verizon (Cellco) and many others have used is unremarkable and commonplace in the history of the FCC’s auction program. The FCC’s Anti-Collusion Rule expressly permits discussion and disclosure, collaboration, and cooperation regarding bids, bidding strategies, and settlement agreements between parties to JBAs, as long as those parties satisfy the disclosure and other transparency requirements adopted by the FCC. Specifically, auction applicants must include in their pre-auction applications: “[a]n exhibit, certified as truthful under penalty of perjury, identifying all parties with whom the applicant has entered into partnerships, joint ventures, consortia or other agreements, arrangements or understandings of any kind relating to the licenses being auctioned, including any such agreements relating to the post-auction market structure . . .”;15 and a “[c]ertification under penalty of perjury that it has not entered and will not enter into any explicit or implicit agreements, arrangements or understandings of any kind with any parties other than those identified pursuant to paragraph (a)(2)(viii) regarding the amount of their bids, bidding strategies or the particular licenses on which they will or will not bid.”16 Then, in their post-auction long-form application, applicants must include: an exhibit providing a “detailed explanation of the terms and conditions and parties involved in any bidding consortia, joint venture, partnership or other agreement or 14

Albany-Schenectady, NY; Bloomington, IN; Charlotte-Gastonia, NC; Greensboro, NC and Oklahoma City, OK.

15

47 C.F.R. § 1.2105(a)(2)(viii).

16

Id. § 1.2105(a)(2)(ix).

The Honorable John Thune May 18, 2015 Page 6 arrangement it had entered into relating to the competitive bidding process prior to the time bidding was completed. Such agreements must have been entered into prior to the filing of short-form applications pursuant to § 1.2105.”17 Application of the FCC’s Anti-Collusion Rule to DISH’s Participation in Auction 97 As explained below, through the prior disclosure of their JBAs, American I, SNR and Northstar (as auction bidders) and the other parties to the agreements (as interest holders in those three bidders) were permitted to discuss and disclose to each other, collaborate and cooperate regarding bids, bidding strategies and settlement agreements during Auction 97. American AWS-3 Wireless III L.L.C. (“American III”) (a DISH subsidiary) and American I were parties to a Bidding Protocol and Joint Bidding Arrangement with SNR Wireless Management, LLC (“SNR Wireless Management”), SNR Wireless HoldCo, LLC (“SNR Wireless HoldCo”) and SNR (the “DISH/SNR JBA”). The DISH/SNR JBA was publicly disclosed and summarized in the pre-auction short-form applications of American I (the wholly owned DISH subsidiary that filed its own application to participate in Auction 97) and SNR (the SNR entity that applied to participate in Auction 97).18 The summaries stated, among other things, that the parties to the agreement would “coordinate bidding for licenses in Auction 97 in order to comply with spectrum aggregation limits or policies that may be applied under the Commission’s rules, to facilitate the consolidation of their systems . . . and to facilitate the business of SNR HoldCo,” and that “coordination will be effected by communications among authorized representatives of the parties at regular intervals during the auction.”19 American AWS-3 Wireless II L.L.C. (“American II”) (a DISH subsidiary) and American I were parties to a Bidding Protocol and Joint Bidding Agreement with Doyon, Limited (“Doyon”), Northstar Manager, LLC (“Northstar Manager”), Northstar Spectrum, LLC (“Northstar Spectrum”) and Northstar (the “DISH/Northstar JBA). The DISH/Northstar JBA was publicly disclosed and summarized in the short-form applications of American I and Northstar (the Northstar entity that applied to participate in Auction 97).20 The summaries stated similarly that parties to the agreement would “coordinate bidding for licenses in Auction 97 in order to comply with spectrum aggregation limits or policies that may be applied under the Commission’s rules, to facilitate the consolidation of their systems . . . and to facilitate the business of Northstar . . .” and 17

Id. § 1.2107(d).

18

American AWS-3 Wireless I, L.L.C., FCC Form 175, File No. 0006458188, Agreements: SNR Bidding Protocol and Joint Bidding Arrangement (filed Nov. 7, 2014) (“American I FCC Form 175”); SNR Wireless LicenseCo, LLC, FCC Form 175, File No. 0006458318, Agreements: SNR Bidding Protocol and Joint Bidding Arrangement (filed Nov. 13, 2014) (“SNR FCC Form 175”). 19

SNR Wireless LicenseCo, LLC, FCC Form 601, File No. 0006670667, Ex. D List and Summary Agreements at 26 (filed Feb. 13, 2015) (“SNR FCC Form 601”). 20

American I FCC Form 175, Agreements: Northstar Bidding Protocol & Joint Bidding Arrangement; Northstar Wireless, LLC, FCC Form 175, File No. 0006458325, Agreements: Northstar Bidding Protocol & Joint Bidding Arrangement (filed Nov. 7, 2014) (“Northstar FCC Form 175”).

The Honorable John Thune May 18, 2015 Page 7 that “coordination will be effected by communications among authorized representatives of the parties at regular intervals during the auction.”21 Finally, American I, American II, American III, Northstar, Northstar Spectrum, Northstar Manager, Doyon, SNR, SNR Wireless HoldCo and SNR Wireless Management also were parties to a Joint Bidding Agreement (the “DISH/SNR/Northstar JBA”) that provided, among other things, that the parties would coordinate bidding in Auction 97 to fulfill their respective strategic purposes, to comply with spectrum aggregation limits or policies that may be applied under the FCC rules, to facilitate roaming arrangements among the parties or their affiliates, and to facilitate consolidation of their systems to the extent contemplated by the DISH/SNR JBA and the DISH/Northstar JBA.22 The DISH/SNR/Northstar JBA was publicly disclosed and summarized in the short-form applications of American I, SNR and Northstar.23 The summaries stated, among other things, that all of the parties would “coordinate regarding bids, bidding strategy and post-auction market structure” and “[b]y virtue of DISH’s interests in each of American I, Northstar Wireless, Northstar, SNR HoldCo and SNR LicenseCo, and the Joint Bidding Arrangements, each applicant will be deemed to have knowledge of the other’s bids or bidding strategies.”24 21

Northstar Wireless, LLC, FCC Form 601, File No. 0006670613, Ex. D Agreements & Other Instruments at 32 (filed Feb. 13, 2015).

22

American I FCC Form 175, Agreements: Letter Agreement; SNR FCC Form 175, Agreements: Letter Agreement; Northstar FCC Form 175, Agreements: Letter Agreement. 23 24

See supra notes 18-22; see also, Northstar FCC Form 175 at Ex. C; SNR FCC Form 175at Ex. E.

SNR FCC Form 601 at Ex. D List and Summary Agreements at 27. The FCC reviewed all of these short-form disclosures, including those related to the JBAs, and found all three applicants qualified to participate in the auction. Thus, pursuant to the Anti-Collusion Rule, American I, SNR and Northstar (as auction bidders) and the other parties to the agreements (as interest holders in those three bidders) were permitted to discuss and disclose to each other, collaborate and cooperate regarding bids, bidding strategies and settlement agreements during Auction 97, much as Verizon (Cellco) and Vista were authorized to do in Auction 58. In that regard, it is also important to note that the FCC Wireless Telecommunications Bureau (“Wireless Bureau”) supervises the entire conduct of FCC auctions, and it expressly reserved the right in the case of Auction 97 to suspend or cancel the auction in the event that it perceived illegal bidding activity, or bidding activity that affected the fair conduct of the auction: “By public notice or by announcement during the auction, we may delay, suspend, or cancel the auction in the event of natural disaster, technical obstacle, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding.” Auction 97 Procedures PN, 29 FCC Rcd 8386, 8437 ¶ 180. (In that case, the Wireless Bureau indicated that it, “in its sole discretion, may elect to resume the auction starting from the beginning of the current round or from some previous round, or cancel the auction in its entirety.” Id.) Plainly, if the FCC’s Wireless Bureau thought that some aspect of the fully-disclosed collaboration of American I, SNR and Northstar amounted to “unlawful bidding activity” or bidding activity that affected the fair conduct of competitive bidding – or if it thought some aspect of the Verizon-Vista collaboration did so in Auction 58 – it could have intervened immediately. It did not. (The Wireless Bureau reserved the same right to delay, suspend or cancel the auction in the case of Auction 58. See Broadband PCS Spectrum Auction Scheduled for January 12, 2005, Public Notice, 19 FCC Rcd 18190, 18220 (WTB 2004)).

The Honorable John Thune May 18, 2015 Page 8 Some observers have commented on the bidding by American I, SNR and Northstar in Auction 97. As an initial matter, because the bidding at issue and the arrangements between the parties were consistent with the FCC’s rules and auction procedures, the comments made are essentially challenges to the FCC’s underlying auction processes and its rules governing DEs that should be raised in the context of general rulemaking proceedings (such as the FCC’s pending rulemaking proceeding that is addressing precisely these issues).25 We would respectfully suggest that if the Committee seeks to investigate joint bidding agreements and bidding activities in prior FCC spectrum auctions, then the investigation should be opened to include all previous joint bidding agreements and DE structures that have been utilized in such auctions, including the Verizon (Cellco)/Vista arrangement. For example some have made much of the fact that American I, SNR and Northstar bid on many of the same licenses, in the same amount and, in some cases, after not bidding on those licenses for many rounds. These criticisms ignore the fact that this type of bidding activity is consistent with – even necessitated by – the FCC’s own competitive bidding rules. Specifically, the FCC imposes bidding activity rules26 to “require[] bidders to bid actively throughout the auction, rather than wait until late in the auction before participating” and “to ensure that an auction closes within a reasonable period of time . . . .”27 The FCC’s Wireless Bureau has found these bidding activity requirements to have “proven successful in maintaining the pace of previous auctions.”28 Thus, in order to remain in the auction and produce the type of procompetitive bidding intended by the Communications Act and the FCC’s rules, American I, SNR and Northstar needed to satisfy these FCC bidding activity requirements. 25

Updating Part 1 Competitive Bidding Rules, Notice of Proposed Rulemaking, 29 FCC Rcd 12426 (2014).

26

The FCC’s competitive bidding procedures require auction applicants to maintain specified levels of bidding activity (i.e., to place new bids, or rely on standing “provisionally winning bids”) on the spectrum on which the applicant is eligible to bid. Auction 97 Procedures PN, 29 FCC Rcd at 8432-33 ¶¶ 163-164. In Stage 1 of Auction 97, bidders were required to maintain an 80 percent bidding activity requirement. Id. at 8432 ¶ 163. In Stage 2 of the auction, that activity requirement rose to 95 percent. Id. at 8432 ¶ 164. In Stages 3 and 4 used by the FCC, bidders were required to remain active on 98 percent and 100 percent, respectively, of the spectrum on which they were eligible to bid. See Announcement, Stage Three Transition, rel. Dec. 15, 2015; Announcement, Stage Four Transition: 100% Requirement, rel. Jan. 15, 2015 available at https://auctionbidding.fcc.gov/auction/index.htm?CFID=6191504&CFTOKEN=95565112&jsessionid=D GhgVW7cp3VM7T92zyynddyKL1shQ1P1ckLhJphSflHtCjgHqJ1q!1484193366!59084!1431731196264 (under the “Announcements” tab). As a consequence, it would have been impossible for American I, SNR and Northstar to maintain their eligibility to bid on licenses without bidding against each other. In addition, the FCC’s bidding system establishes specific amounts for the bids that bidders may place on particular licenses. Bidders do not set their own bid amounts; instead, they are given the option to bid nine different bid increment amounts. Auction 97 Procedures PN, 29 FCC Rcd at 8443-44 ¶¶ 201-203. Consequently, the fact that two or three bidders bid the same amount on any particular license in a particular auction round is not unusual in the least. In fact, auction data shows that 98.6 percent of the 41,377 bids placed by all bidders in Auction 97 were the minimum acceptable bid for the subject license.

27

Auction 97 Procedures PN, 29 FCC Rcd at 8431 ¶ 159.

28

Id. at 8431 ¶ 160.

The Honorable John Thune May 18, 2015 Page 9 Some observers also have raised questions regarding SNR and Northstar’s apparent willingness to accept the results of the FCC’s “random number generator” tie-breaking mechanism. The FCC’s auction rules provide that when auction participants bid on the same license in the same increment amount, the FCC will randomly determine who is the provisionally winning bidder (“PWB”) for that license (i.e., “break the tie”).29 Bidders who do not win the tiebreaker are free to bid on that same license again, or not to bid on that same license again. The FCC’s tiebreaker mechanism does not in any way limit an auction participant’s flexibility under the bidding rules – it simply determines the identity of the PWB. Thus, SNR’s and Northstar’s decisions as to whether to continue bidding for any particular license would have been based on the factors those entities used to evaluate potential bids. In addition, any discussions and/or collaboration between SNR, Northstar and American I regarding individual bids would have been permissible, pursuant to the properly disclosed JBAs between the parties. In addition, some suggest that American I, SNR, and Northstar’s bidding in the auction rendered smaller rural companies unable to secure spectrum, and created the impression of “false demand.” This assertion, however, is not supported by a review of the auction data. As an initial matter, throughout Auction 97, each of American I, SNR and Northstar’s entered bids were bona fide bids and, if any of those bids had become a winning bid, American I, SNR and Northstar fully intended to pay for those licenses, and would have paid for them. Indeed, SNR and Northstar did pay for the licenses they ultimately won. Moreover, the 23 bidders in the auction that identified themselves as Rural Local Exchange Carriers (“RLECs”) were outbid by several other auction participants, including in some instances by AT&T and Verizon, and thus would not have secured those licenses even if SNR and Northstar did not participate in the auction. In fact, the licenses won by SNR and Northstar accounted for less than 20 percent of the value of the licenses for which these RLEC bidders were outbid. For the 115 licenses for which the RLECs were outbid, they entered total bids equal to less than 30 percent of the value of the total eventual winning bids. This makes it clear that these RLECs would not have won these licenses even if SNR and Northstar had not participated in Auction 97. Finally, notwithstanding the suggestions of Verizon, the FCC’s Anti-Collusion Rule does not preclude parties to JBAs from discussing bid prices.30 Suggestions to the contrary rely on a 1994 FCC statement that was taken out of context and are disingenuous. The cited FCC statement was made in a discussion regarding scenarios in which entities did not satisfy the JBA exception requirements (e.g., the entities entered into a JBA after the short-form filing deadline), and in such cases, the FCC “would expect” the antitrust laws to prohibit discussions of bid prices.31 (Indeed, when the FCC adopted the Anti-Collusion Rule earlier that same year, it included a nearly identical discussion of antitrust authorities but made no mention of a proscription on discussing

29

Id. at 8444-45 ¶ 207.

30

Letter from Kathleen Grillo, Senior Vice President of Fed. Reg. and Legal Affairs, Verizon, to Marlene H. Dortch, Secretary, FCC, AU Docket No. 14-78, WT Docket No. 14-170, at 3 (Apr. 24, 2015).

31

Competitive Bidding Fourth Memorandum Opinion and Order, 9 FCC Rcd 6858, 6867-69 ¶¶ 50-59.

The Honorable John Thune May 18, 2015 Page 10 bid prices.32) In reality, the FCC’s rules specifically contemplate and FCC decisions have repeatedly blessed these arrangements. More importantly, it is not the case that the antitrust laws prohibit any discussion of bid prices or joint and coordinated bidding in auctions, including Auction 97. The antitrust agencies have made clear that agreements of these kinds among “participants in an efficiency-enhancing integration of economic activity” are permitted under the “flexible” rule of reason when shown to be “reasonably related to the integration and reasonably necessary to achieve its procompetitive benefits.”33 In sum, American I, SNR and Northstar were parties to JBAs that were disclosed prior to the auction pursuant to the FCC’s rules. Discussion and disclosure to each other of, and collaboration and cooperation regarding, bids, bidding strategies and settlement agreements was thus permitted under the FCC’s rules. Application of Antitrust Laws to DISH’s Participation in Auction 97 The U.S. antitrust laws have long had the same basic objective: to promote competition. Here, the parties’ activity under the JBAs was fully disclosed in advance and was allowed under the FCC’s auction rules. It enabled potential competitors – who otherwise would not have been able to compete – to successfully bid against industry incumbents who currently control 80 percent of the industry’s mobile wireless service revenue. American I, SNR and Northstar’s activity under the JBAs was procompetitive and resulted in precisely the kind of meaningful participation by small bidders (designated entities) that the FCC’s rules and antitrust law were designed to encourage. There is a fundamental difference between bid-rigging and collaboration on bids. Bid-rigging schemes are conspiratorially designed and concealed from the seller in an attempt to artificially suppress bid prices in a manner unintended by the auctioneer. On one hand, the antitrust laws condemn bid-rigging and the courts have found it to be per se illegal, because it has a “pernicious effect on competition and lack[s] . . . any redeeming virtue.”34 Collaboration on bids, on the other hand, involves collaborative efforts approved by the auctioneer that are designed to foster competition. Thus, courts have consistently rejected the notion that joint bidding arrangements to bid for assets in a sale or auction are invariably anticompetitive, and have rejected characterizing them as per se illegal. Rather, courts have routinely determined them to be procompetitive.35

32

See Competitive Bidding Second Report and Order, 9 FCC Rcd at 2387 ¶ 225 n.165.

33

Department of Justice and Federal Trade Commission, Antitrust Guidelines for Collaborations Among Competitors, at 8 (Apr. 2000) (“Antitrust Guidelines for Collaborations Among Competitors”), available at https://www.ftc.gov/sites/default/files/documents/public_events/joint-venture-hearings-antitrust-guideline s-collaboration-among-competitors/ftcdojguidelines-2.pdf. 34

Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5 (1958); United States v. Romer, 148 F.3d 359 (4th Cir. 1998), cert. denied 525 U.S. 1141 (1999).

35

See, e.g., Pa. Ave. Funds v. Borey, 569 F. Supp.2d 1126, 1133-34 (W.D. Wash. 2008).

The Honorable John Thune May 18, 2015 Page 11 Accordingly, fully disclosed and authorized bidding arrangements, such as the ones utilized by American I, SNR, and Northstar, do not violate the antitrust laws. Much like the FCC, which has only taken enforcement action against bidders who unlawfully communicated with other bidders without disclosing a JBA,36 the Department of Justice (“DOJ”) also has found permissible bidding arrangements that act in accordance with the applicable regulatory framework. Past DOJ enforcement actions have targeted parties that (1) did not make the required disclosures to the FCC, and (2) engaged in undisclosed tactics to refrain from bidding against each other or otherwise reduce bidding competition.37 That is not the case with respect to DISH’s participation in Auction 97. The JBAs between American I, SNR and Northstar were fully disclosed in each applicant’s pre-auction application, allowed under FCC rules and, indeed, helped make the AWS-3 auction far more successful that it would have otherwise been. Case law makes clear that courts are skeptical that collaborative bids that are disclosed to and approved by the auctioneer can be anticompetitive.38 In fact, American I, SNR and Northstar’s procompetitive participation in Auction 97 helped counteract industry trends towards increased wireless industry consolidation. The FCC’s 2014 annual review of wireless industry competition found that the two largest carriers, Verizon and AT&T, together control approximately 70 percent of the nationwide market share based on service revenues.39 As a general matter, an operator needs enormous scale to compete in the U.S. wireless market. The scale required serves as a substantial barrier to entry for newcomers; rivals also struggle to challenge market leaders. One way market leaders have been able to remain dominant is through their financial ability to win increasingly expensive spectrum at auction. Indeed, absent strong DE participation in Auction 97, Verizon and AT&T would likely have prevailed in winning even more of the AWS-3 spectrum and would have accounted for over 80 percent of the total auction revenues, consistent with the results of Auction 73. 36

See, e.g., Star Wireless, LLC v. FCC, 522 F.3d 469, 473-74 (D.C. Cir. 2008); Cascade Access, L.L.C., Notice of Apparent Liability for Forfeiture, 24 FCC Rcd 1350, 1352-54 ¶¶ 8-11 (EB 2009); Mercury PCS II, LLC, Notice of Apparent Liability for Forfeiture, 12 FCC Rcd 17970, 17975-77 ¶¶ 14-17 (1997); Commercial Realty St. Pete, Inc., Notice of Apparent Liability for Forfeiture, 10 FCC Rcd 4277, 4282-83 ¶¶ 19-20 (1995); see generally, FCC, Summary Listing of Documents Addressing Application of the Rule Prohibiting Certain Communications, http://wireless.fcc.gov/auctions/default.htm?job=prohibited-_communications (last visited May 13, 2015). 37

See, e.g., Complaint at 5-7, United States v. Omnipoint Corp, No. 98-2750(D.D.C. Nov. 10, 1998) available at, http://www.justice.gov/atr/cases/f2000/2064.htm (parties did not disclose bidding agreement, and secretly used three-digit market codes at the end of their bids to signal or communicate with competitors with the intent of obtaining licenses at lower auction prices); Competitive Impact Statement at 1-2, United States v. Mercury PCS II, L.L.C., No. 98-2751 (D.D.C. Nov. 10, 1998), available at http://www.justice.gov/atr/cases/f2000/2063.htm (defendants engaged in same collusive behavior using the three digit codes and also were found to have violated antitrust laws).

38

Robertson v. Isomedix, Inc (In re Int’l Nutronics, Inc.), 28 F.3d 965 (9th Cir. 1994) (rejecting bid-rigging claim where alleged anticompetitive “collusion” was apparent on the face of the bid).

39

See Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, Seventeenth Report, 29 FCC Rcd 15311, 15326 ¶ 30, Table II.C.2 (WTB 2014).

The Honorable John Thune May 18, 2015 Page 12 Against this backdrop of ever larger entry barriers to wireless competition, the JBAs were procompetitive in at least three ways. First, American I’s JBAs with each of SNR and Northstar enabled SNR and Northstar to bid successfully for spectrum that they otherwise likely would not have been able to acquire, thereby increasing competition for licenses during the auction process.40 Second, the collaboration enabled SNR and Northstar to obtain access to spectrum that will enable them to compete in the wireless market, thereby enhancing downstream competition for consumers. Third, the DISH/SNR/Northstar JBA enabled SNR and Northstar to take into consideration the licenses being won by the other, in conjunction with their own business plans, such that the resulting licenses acquired could complement each other, as well as DISH’s current spectrum holdings, and facilitate possible build-out, roaming, and the provision of service to consumers. As the Federal Trade Commission and DOJ have recognized, “[i]n order to compete in modern markets, competitors sometimes need to collaborate . . . . Such collaborations often are not only benign but procompetitive.”41 In Auction 97, the joint bidding arrangement facilitated the meaningful participation of SNR and Northstar. The addition of SNR and Northstar into the pool of prospective bidders increased the competition for licenses and therefore increased the auction revenue obtained for FirstNet and the U.S. Treasury,42 along with achieving the statutory goals of the DE program. Some critics have taken a very narrow view of the auction and claim that NorthStar and SNR cost the American taxpayers over $3 billion. But that approach takes the bidding credits out of context and ignores the results of the auction as a whole. It is a basic principle of any auction process that increased competition for licenses yields higher revenues. That principle, combined with the experience of past FCC auctions – particularly those where DE participation was not as vibrant as in Auction 97 – strongly suggest that, had there not been the active participation of more than 15 DEs in Auction 97, there would have been less competition and the auction would have been dominated by AT&T and Verizon. In fact, before the auction, analysts expected that the auction

40

It is important to note that, while DISH made substantial indirect investments in SNR and Northstar, DISH will not hold and control the spectrum won by either entity. In addition, in the event that either of the DEs seeks to lease spectrum to DISH (or any other large company), the FCC’s rules significantly limit the amount of spectrum under each license that may be leased to 25 percent or less. See Walter Piecyk, Dish Does Not Control The Bidders That Won $10 Billion Of Spectrum, BTIG RESEARCH (Feb. 2, 2015). It is for this reason that Verizon’s former CEO Ivan Seidenberg explained how difficult it was to invest in DEs to gain access to spectrum – concluding that it made more sense for the company to acquire spectrum outright without any DE investment. Lawrence J. Spiwak, How the AWS Auction Provides a Teachable Moment on the Nature of Regulation, BLOOMBERG BNA (Apr. 29, 2015) (“AWS Auction Teachable Article”). 41 42

Antitrust Guidelines for Collaborations Among Competitors at 1.

See Reply Comments of Council Tree Investors, Inc., GN Docket No. 12-268, AU Docket No. 14-252 (Mar. 13, 2015) (“Council Tree Reply Comments”), available at http://apps.fcc.gov/ecfs/document/-view?id=60001040446; Comments of Council Tree Investors, Inc., WT Docket 14-170, GN Docket 12-268, RM-11395, WT Docket 05-211 (May 14, 2015) (“Council Tree Comments”), available at http://apps.fcc.gov/ecfs/document/view?id=60001047433.

The Honorable John Thune May 18, 2015 Page 13 would generate at most $18 billion in revenue.43 Post-auction, it is now evident that the additional competition sparked by active DE participation actually generated an additional $23 billion in revenues for taxpayers, even when netting out the bidding credits.44 In short, the DE bidding credits enabled more competitors to bid aggressively for spectrum, resulting in $41 billion net revenues for the American taxpayer ($23 billion more than estimated), and making it the most successful auction in FCC history.45 That result should be applauded. The impact of the participation of DE bidders is clear when one examines the results of FCC Auctions 66 (for AWS spectrum) and 73 (for 700 MHz spectrum) conducted in 2006 and 2008, respectively, under much more restrictive rules governing DEs that severely limited their participation in spectrum auctions. In those two auctions, DE participation languished (less than 4 percent participation, in stark contrast to their 32 percent participation in Auction 97). And the prices in those auctions reflected that lackluster participation – Auction 66 prices were just 20 percent of those in Auction 97, and Auction 73 prices (for highly coveted low-band spectrum) were just 48 percent of those in Auction 97. In Auction 73, AT&T and Verizon accounted for more than 83 percent of the total gross auction revenue. Limited DE participation in those auctions cost taxpayers billions of dollars.46 The additional $23 billion generated by active DE bidding in Auction 97, and overall net revenues of $41 billion, not only fully covered the $7 billion funding for FirstNet and relocation costs of Federal incumbents in the AWS-3 spectrum – but it also provided an unexpected $29 billion to the U.S. Treasury for deficit reduction. By all accounts, Auction 97, hailed by FCC Chairman Wheeler as “by far the highest-earning spectrum auction the United States has ever seen,”47 is the most successful auction in FCC history, and represents a win for the American taxpayer. The active participation of DISH, Northstar and SNR played a critical role in making it so successful. In addition, through collaborative bidding and DISH’s passive investment, SNR and Northstar were able to win licenses, in some instances defeating much larger and well-financed incumbent wireless carriers, such as AT&T and Verizon – who notably still amassed a collective $28.6 billion in spectrum licenses, representing 67 percent of the gross auction revenue. Northstar is controlled by Doyon, an Alaska Regional Native Corporation organized by Congress under the Alaska Native Claims Settlement Act, 43 U.S.C. § 1601 et seq. Doyon is owned by over 19,200 Alaska Native shareholders, principally of Athabascan descent, a majority of whom are women. Since 2000, Doyon has participated in the FCC’s spectrum auctions, and has been approved by the FCC as a DE licensee for over 45 licenses totaling $3.3 billion in gross auction purchases.

43

See Council Tree Reply Comments; Council Tree Comments.

44

Council Tree Reply Comments.

45

Id.

46

Id.

47

Ben Munson, Washington Glowing Over AWS-3 Auction Results, WIRELESS WEEK (Jan. 29, 2015).

The Honorable John Thune May 18, 2015 Page 14 SNR is controlled by John Muleta, who has a strong background in FCC spectrum auctions, government, business and wireless technology, including specifically the AWS-3 band. Mr. Muleta served for six years at the FCC, including as Deputy Bureau Chief of the Common Carrier Bureau and Chief of the FCC’s Wireless Bureau. Before joining the FCC, Mr. Muleta was employed as a network engineer at GTE Corporation. After his first role at the FCC, he served as a Senior Vice President at PSInet, one of the first commercial ISPs; was an Executive Vice President at Navisite, a company focused on enterprise-class, cloud-enabled hosting; and was the CEO of M2Z Networks, a wireless startup company. Issuance of the licenses acquired in Auction 97 to SNR will enable the entry of a potential new competitor and SNR/Muleta will become the largest African-American holder of spectrum in the history of FCC’s auctions. The Supreme Court also has cautioned that the antitrust laws “were enacted for ‘the protection of competition not competitors.’”48 The fact that some auction participants are unhappy because they did not win certain spectrum in the auction at the prices they wanted is not evidence that competition was harmed. The very concept of an auction is that bidders must continue to increase their bid prices in order to successfully win the auction item, and that an auctioned license will flow to the bidder that values the license most highly. Indeed, the JBAs between American I, SNR and Northstar did not prevent any auction participant from bidding in Auction 97, and such a claim could not withstand scrutiny. Auction participants (SNR, Northstar, and other bidders alike) bid what they were willing to pay for spectrum – without regard to whether JBAs exist among certain other auction participants. When the price of the spectrum exceeds what the bidder is willing to pay, the bidder stops bidding – that is how FCC spectrum auctions come to a close. Vigorous, tough competition means some firms win and some lose.49 Finally, it is important to note that the FCC’s rules governing DEs have been in place for over 15 years. Since their adoption, the rules have been subject to ongoing debate and criticism regarding the availability and amount of bidding credits given to DEs.50 However, when it came 48

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977) (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962)).

49

See P. Areeda & D. Turner, Antitrust Law ¶ 317d (1978) (summary disposition issues often arise in suits by unhappy competitors whose “sense of oppression is not matched by any entitlement to legal relief”) ; ¶307d (4th Ed. 2013) (“plaintiffs’ distress in such cases seldom produces an entitlement to legal relief”).

50

Stephen Labaton and Simon Romero, F.C.C. Auction Hit With Claim Of Unfair Bids, NEW YORK TIMES (Feb. 12, 2001), available at http://www.nytimes.com/2001/02/12/business/fcc-auction-hit-with-claim-of-unfair-bids.html (critics of the FCC’s 2001 PCS auction “assert that Cingular and three of the nation’s other largest wireless companies – AT&T Wireless, VoiceStream Wireless and Sprint PCS – took unfair advantage of the F.C.C. rules to win more than 90 percent of the licenses meant for small businesses . . .” and that “[t]hree of those companies also benefited from hundreds of millions of dollars in government subsidies that were supposed to promote competition by helping tiny entrepreneurs . . .”); Amy Schatz, FCC Considers Tightening Rules On Airwave-Auction Discounts, THE WALL STREET JOURNAL (Feb. 2, 2006), available at http://www.wsj.com/articles/SB113885476847663026 (Noting that “Federal regulators are considering tightening rules that have allowed some national wireless carriers to receive multimillion-dollar discounts in spectrum auctions . . .” and that “[i]n an FCC auction held early in 2005 for broadband wireless spectrum . . . companies that qualified for small-business discounts won 47 of 217 licenses up for bid. The

The Honorable John Thune May 18, 2015 Page 15 time to decide the rules for Auction 97, the FCC chose not to change its DE rules or impose limits on the amount of spectrum DEs could acquire. In March 2014, the Auction 97 DE rules – which did not impose any bidding credit caps – were unanimously approved by all five FCC Commissioners. Congress or the FCC certainly may decide to change the auction rules going forward, but they must not engage in retroactive lawmaking with respect to Auction 97. RESPONSES TO QUESTIONS In light of the foregoing, the responses to question numbers 1-5 of your letter are “no.” Because American I, SNR and Northstar were all parties to JBAs – all disclosed on their short-form applications – each of these applicants (including its representatives), were permitted to discuss and disclose to each other, collaborate and communicate regarding bids, bidding strategies and settlement agreements. This was consistent with, and did not violate, the Anti-Collusion Rule. Also, since discussion, disclosure, collaboration and communications were permitted – and in fact fully contemplated – between the parties per the publicly disclosed JBAs, these and any communications were consistent with and allowed by the FCC’s rules. The FCC does not require disclosure of these communications in long-form applications because all other auction participants are made aware of the JBAs prior to the auction, and thus should reasonably expect that parties to the JBAs will communicate and coordinate their bids, bidding strategies, and settlement agreements. With respect to question numbers 6-7, 11 and 13, we believe that the appropriate nature of the communications, along with the comprehensive information in this letter, addresses the basis of your requests for these questions; moreover, disclosure of such strategically sensitive information would harm DISH, SNR and Northstar, including in connection with their potential participation in future FCC spectrum auctions. In response to question numbers 8-10, DISH is providing you with copies of all of the SNR and Northstar agreements with DISH and/or its subsidiaries, including the JBAs and related round-by-round bidding authorizations, as well as other SNR and Northstar agreements pertaining to their DE status. These agreements and other documents have all been filed with SNR’s and Northstar’s respective long-form applications, and are publicly available via the FCC’s website. DISH is also providing you with a copy of the pre-auction short-form application filed by American I. In response to question number 11, DISH’s recommendations for an extra mock auction and FCC Auction System improvements were intended to help make the mechanics of the auction bidding process more efficient and user-friendly for all bidders. The improvements would have benefited all bidders and potentially encouraged greater auction participation, thereby attracting cumulative value of those discounts was worth $210 million in the auction, which raised about $2 billion for the federal treasury. Four small firms that have won many of those licenses were linked with larger wireless carriers. The FCC is still reviewing the winning bid application by one of those firms, Vista PCS, an affiliate of Verizon Wireless . . .”).

The Honorable John Thune May 18, 2015 Page 16 the maximum amount of revenue for the U.S. Treasury. The FCC declined to hold an additional mock auction for the AWS-3 auction. In response to question number 12, DISH notes that American II and American III were parties to the JBA entered into by American I, American II, American III, Northstar, Northstar Spectrum, Northstar Manager, Doyon, SNR, SNR Wireless HoldCo and SNR Wireless Management. However, since neither American II nor American III applied to be bidders in the auction, their inclusion as parties to that agreement was not separately required to be disclosed in any separate filings by American II or American III (as the agreement already was disclosed by each of American I, SNR and Northstar – the auction applicants that were parties to that agreement). The post-auction applications of SNR and Northstar are going through the FCC’s “thorough and comprehensive review” process, during which FCC staff will “rigorously assess applicants’ compliance with Commission rules” and “consider each application on its own merits and make licensing and any bidding credit decisions according to the specific facts and totality of circumstances in the record.”51 DISH, SNR and Northstar complied with the law in reaching and implementing their agreements related to Auction 97. Neither the FCC, nor Congress, should shift the goal posts after the fact – to do so would violate the law, ignore reasonable investment expectations and significantly undermine future FCC spectrum auctions.52 Thank you for the opportunity to address your questions with respect to Auction 97. Please do not hesitate to contact me or have your staff contact Jeff Blum, Senior Vice President and Deputy General Counsel, if DISH can provide any additional information or otherwise be of assistance. Of course, as the FCC review process continues, we will keep you apprised of developments. Sincerely,

____________________________ R. Stanton Dodge Executive Vice President, General Counsel DISH Network Corporation Enclosures cc:

The Honorable Bill Nelson

51

Posting of Roger Sherman to Official FCC Blog, AWS-3 Update: The Licensing Process Continues, https://www.fcc.gov/blog/aws-3-update-licensing-process-continues (Apr. 29, 2015, 12:33 PM). 52

Changing the rules post-auction also would require an “auction do-over” which would almost certainly generate less revenue for American taxpayers, raise uncertainty over FirstNet funding, and delay the broadcast incentive auction. See AWS Auction Teachable Article.

The Honorable John Thune May 18, 2015 Page 17 ATTACHMENT A 1. Cook Inlet Western Wireless PV/SS PCS, L.P. had a JBA with Western Wireless PCS BTA I Corporation (now T-Mobile) in Auction 11 for Broadband PCS spectrum (See FCC Form 601, File No. 00067CWL97, Ex. F, Agreement: PCS Blocks D, E, and F Joint Bidding Agreement with Cook Inlet Western Wireless PV/SS PCS, L.P. and Western PCS BTA I Corporation); 2. ABC Wireless, L.L.C. had a JBA with AT&T Wireless/Telecorp in Auction 22 for Broadband PCS spectrum (See FCC Form 601, File No. 0000012954, Ex. E1: Business Plan and Bidding Arrangements with AT&T Wireless, Inc., Lafayette Communications Company L.L.C. and Tritel Holding Corp.); 3. Cook Inlet/VoiceStream PCS LLC had a Bidding Protocol agreement with VoiceStream (now T-Mobile) in Auction 22 (See FCC Form 601, File No. 0000012949, Ex. E, Agreement: CIVS Bidding Protocol with Cook Inlet GSM and VoiceStream PCS I); 4. Cook Inlet/VS GSM V PCS, LLC had a JBA with VoiceStream (now T-Mobile) in Auction 35 for Broadband PCS spectrum (See FCC Form 175, File No. 0351524434, Agreement: Joint Bidding Agreement with VoiceStream PCS BTA I License Corporation); 5. Alaska Native Wireless, L.L.C. had a JBA with AT&T Wireless in Auction 35 (See FCC Form 175, File No. 0351503554, Agreement: Joint Bidding Arrangement with AT&T Wireless PCS, LLC and AT&T Wireless Services, Inc.); 6. Poplar PCS-Central, LLC had a JBA with Verizon Wireless (which was terminated prior to auction) in Auction 35 (See FCC Form 175, File No. 0351653248, Agreement: Joint Bidding arrangement with Cellco Partnership d/b/a Verizon Wireless); 7. Salmon PCS, LLC had a JBA with Cingular (now AT&T Wireless) in Auction 35 (See FCC Form 175, File No. 0351034584, Agreement: Joint Bidding Agreement with Cingular Wireless LLC); 8. Lafayette Communications Company L.L.C. had a Bidding Protocol agreement with Triton PCS in Auction 35 (See FCC Form 175, File No. 0351642254, Agreement: Bidding Agreement with Triton PCS, Inc.); 9. Black Crow Wireless, L.P. had a Bidding Protocol agreement with US Cellular in Auction 35 (See FCC Form 157, File No. 0351719124, Agreement: Bidding Protocol with USCC Wireless Investment, Inc.); 10. Vista PCS, LLC had a JBA with Verizon Wireless in Auction 58 for Broadband PCS spectrum (See FCC Form 175, File No. 0581455272, Agreement: [Bidding Agreement (title not disclosed)] with Cellco Partnership d/b/a Verizon Wireless; 11. Alaska Native Broadband 1 License, LLC had a JBA with Leap (now AT&T Wireless) in Auction 58 (See FCC Form 175, File No. 0581703267, Agreements: Bidding Protocol with Alaska Native Broadband 1, LLC, Alaska Native Broadband, LLC and Cricket Communications, Inc.; Joint Bidding Arrangements with Alaska Native Broadband 1, LLC, Alaska Native Broadband 2 License, LLC, Alaska Native Broadband 2, LLC, Alaska Native Broadband, LLC, Cricket Licensee (Reauction), Inc., Cricket Communications, Inc. and Leap

The Honorable John Thune May 18, 2015 Page 18 Wireless International, Inc.; Amended Joint Bidding Protocol with Alaska Native Broadband 1, LLC, Alaska Native Broadband, LLC and Cricket Communications, Inc.); 12. Alaska Native Broadband 2 License, LLC had a JBA with Leap (now AT&T Wireless) in Auction 58 (See FCC Form 175, File No. 0581712133, Agreements: Bidding Protocol with Alaska Native Broadband 2, LLC, Alaska Native Broadband, LLC and Cricket Communications, Inc.; Joint Bidding Arrangements with Alaska Native Broadband 1, LLC, Alaska Native Broadband 2 License, LLC, Alaska Native Broadband 2, LLC, Alaska Native Broadband, LLC, Cricket Licensee (Reauction), Inc., Cricket Communications, Inc. and Leap Wireless International, Inc.); 13. Carroll Wireless, LP had a Bidding Protocol with USCC Wireless Investment, LLC in Auction 58 (See FCC Form 601, File No. 0002069484, Ex. E, Agreement: Bidding Protocol Agreement with Carroll PCS and USCC Wireless Investment, LLC); 14. Royal Street Communications, LLC had a Bidding Protocol agreement with MetroPCS (now T-Mobile) in Auction 58 (See FCC Form 175, File No. 0581429561, Agreement: Joint Bidding Arrangement with GWI PCS1, Inc., MetroPCS Wireless, Inc., MetroPCS, Inc., MetroPCS Communications, Inc., All States 1031 X-Change Facilitator, LLC, and Cellco Partnership d/b/a Verizon Wireless); 15. Edge Mobile, LLC had a JBA with Cingular Mobile Wireless, LLC (now AT&T Wireless) in Auction 58 (See FCC Form 601, File No. 0002069630, Ex. E; Agreement: Bidding Protocol and Joint Bidding Arrangement with Edge Mobile, LLC, Edge Mobile Wireless, LLC and Cingular Mobile Wireless, LLC); 16. Wirefree Partners III, LLC has a Bidding Protocol agreement with Sprint in Auction 58 (See FCC Form 175, File No. 0581631143, Agreement: Joint Bidding Arrangement with SprintCom, Inc., Sprint Spectrum, L.P., WirelessCo, L.P.); 17. Denali Spectrum License, LLC had a JBA with Leap (now AT&T Wireless) in Auction 66 for AWS spectrum) (See FCC Form 175, File No. 0002605611, Agreements: Bidding Protocol and Joint Bidding Arrangement with Denali Spectrum, LLC, Denali Spectrum, LLC, Denali Spectrum Manager, LLC, Cricket Licensee III, Inc., Cricket Licensee (Reauction), Inc., Cricket Communications, Inc. and Leap Wireless International, Inc.; Agreement Regarding Joint Bidding Arrangement with CURRENT Communications Services, LLC, CURRENT Communications Group, LLC, POP Wireless, LLC, Denali Spectrum Manager, LLC, Denali Spectrum, LLC, Denali Spectrum License, LLC, Cricket Communications, Inc., Cricket Licensee (Reauction), Inc., Leap Wireless International, Inc. and Cricket Licensee III, Inc.); 18. Chequamegon Communications Cooperative, Inc. had a JBA with WWW Broadband, LLC and others in Auction 66 (See FCC Form 175, File No. 0002602553; Agreement: Joint Bidding Agreement with WWW Broadband, LLC, West Central Communications, LLC and Chequamegon Communications Cooperative, Inc.); 19. Wittenberg Telephone Company had a JBA with NSIGHTTEL Wireless and others in Auction 66 (See FCC Form 175, File No. 0002605696, Agreement: Iowa Wisconsin Bidding Agreement with Iowa Intelegra Consortium, LLC, NEIT Wireless, LLC, Dakota Wireless Group, LLC, Schaller Telephone Company, PST Digital, LLC, Interstate Enterprises, Ltd., Hawkeye Telephone Company, Northeast Communications of Wisconsin, Inc., Benton/Linn

The Honorable John Thune May 18, 2015 Page 19 Wireless, LLC, Bruce C Rueber, Beate M Reuber, BRF Wireless, LLC, NSIGHTTEL WIRELESS, LLC, Niagara Telephone Company, and Wittenberg Telephone Company); 20. Barat Wireless, L.P., had a Bidding Protocol agreement with USCC Wireless Investment, Inc. (US Cellular) in Auction 66 (See FCC Form 601, File No. 0002774772, Ex. D; Agreement: Bidding Protocol Agreement with Barat Inc. and USCC Wireless Investment, Inc.; 21. Lynch AWS Corporation had a Bidding Agreement with Western New Mexico Telephone Company, Inc. and others in Auction 66 (See FCC Form 175, File No. 0002605662, Agreement: Bidding Agreement with Western New Mexico Telephone Company, Inc., Inter-Community Telephone Company, LLC, Cuba City Telephone Exchange Company, Bretton Woods Telephone Company, Inc., JBN Telephone Company, Inc., Haviland Telephone Company, Inc., Dunkirk & Fredonia Telephone Company, Upper Peninsula Telephone Company, CS Technologies, Inc., Lynch AWS Corporation, Lynch Interactive Corporation, Cal-Ore Telephone Co. and Central Utah Telephone Company); 22. King Street Wireless, L.P. had a JBA with United States Cellular Corporation (US Cellular) and others in Auction 73 for 700 MHz spectrum (See FCC Form 175, File No. 0003247597, Agreements: Joint Bidding Agreement with United States Cellular Corporation and Muskrat Wireless, L.P.; Bidding Agreement with United States Cellular Corporation and King Street Wireless, L.P.); 23. Denali Spectrum License, LLC had a JBA with Leap Wireless International, Inc. (now AT&T Wireless) and others in Auction 73 (See FCC Form 175, File No. 0003247633, Agreement: Bidding Protocol and Joint Bidding Arrangement with Denali Spectrum Manager, LLC, Denali Spectrum, LLC, Denali Spectrum License, LLC, Cricket Communications, Inc., Leap Wireless International, Inc., Cricket Licensee 2007, LLC, Cricket Licensee (Reauction), Inc. and Doyon, Limited); 24. Horry Telephone Cooperative, Inc. had a JBA with Sandhill Communications, LLC in Auction 73 (See FCC Form 175, File No. 0003246745, Agreement: Horry/Sandhill Joint Bidding Agreement with Sandhill Communications, LLC); 25. Sandhill Communications, LLC had a JBA with Horry Telephone Cooperative, Inc. in Auction 73 (See FCC Form 175, File No. 003246252, Agreement: Horry/Sandhill Joint Bidding Agreement with Sandhill Communications, LLC); 26. I-700, LLC had a JBA with Grand River Communications, Inc. and others in Auction 73 (See FCC Form 175, File No. 0003248044, Agreement: Joint Bidding Agreement No. 1 with Airlinx, G.P., Interstate Enterprise, LTD, Grand River Communications, Inc., Sully Telephone Association, Marne & Elk Horn Telephone Company, Panora Telecommunications, Inc., Colo Telephone Company, Hardin County Wireless, Inc., Verocity Wireless, LLC, NEIT Wireless, LLC, Community Digital Wireless, LLC, East Buchanan Telephone Company, Hawkeye Telephone Company, Van Horne Cooperative Telephone Company, Cass Wireless, LLC, Shawnee Communications, Granite Wireless, LLC, Trinidad Group, LLC, AP WIRELESS, LLC, Badger Huts, LLC, Jesup Telephone and Television, Inc., Schaller Telephone Company, Technology Group, LLC, RSA 1 Limited Partnership, BRF Wireless, LLC and Iowa Intelegra Consortium, LLC);

The Honorable John Thune May 18, 2015 Page 20 27. Red River Rural Telephone Association, Inc. had a JBA with Polar Communications Mutual Aid Corporation and others in Auction 73 (See FCC Form 175, File No. 0003244562, Agreement: Joint Bidding and Partitioning Agreement with Dickey Rural Telephone Cooperative, Halstad Telephone Company and Polar Communications Mutual Aid Corporation); 28. Muskrat Wireless, LP had a JBA with United States Cellular Corporation (US Cellular) and others in Auction 73 (See FCC Form 175, File No. 0003246377, Agreements: Joint Bidding Agreement with United States Cellular Corporation and Muskrat Wireless, LP; Agreement 1 with United States Cellular Corporation and King Street Wireless, L.P.; Agreement 2 with USCC Wireless Investment, Inc. and King Street Wireless, L.P.; and Bidding Agreement with United States Cellular Corporation and King Street Wireless, L.P.); 29. Cavalier Wireless, LLC had a Bidding Agreement with Bluewater Wireless, L.P. and others in Auction 73 (See FCC Form 175, File No. 0003246738, Agreement: Agreement 2 – Bidding Agreement with Cavalier Wireless, LLC, Wirt A Yerger III, Bluewater Wireless, L.P. and Charles C Townsend); 30. Cellular South Licenses, Inc. had an auction participation and investment agreement with Frontline Wireless, LLC in Auction 73 (See FCC Form 175, File No. 0003243646, Agreement: Agreement 1 Auction Participation and Investment with Frontline Wireless, LLC and Cellular South, Inc.); 31. Triangle Communication System, Inc. had a JBA with Nemont Communications, Inc. (now Sagebrush) and others in Auction 97for AWS-3 spectrum (See FCC Form 175, File No. 0006458028, Agreement: Joint Auction Bidding and Partitioning Agreement with Cable & Communications Corporation and Nemont Communications, Inc.); 32. FTC Management Group, Inc. had a JBA with Horry Telephone Cooperative, Inc. and others in Auction 97 (See FCC Form 175, File No. 0006455134, Agreement: Joint Bidding Agreement with Sandhill Communications, LLC, Horry Telephone Cooperative, Inc., Atlantic Seawinds Communications, LLC and FTC Management Group, Inc.); 33. Sandhill Communications, LLC had a JBA with Horry Telephone Cooperative, Inc. and others in Auction 97 (See FCC Form 175, File No. 0006456341, Agreement: Joint Bidding Agreement with FTC Management Group, Horry Telephone Cooperative, Inc., Atlantic Seawinds Communications, LLC and Sandhill Communications, LLC); 34. Atlantic Seawinds Communications, LLC had a JBA with Horry Telephone Cooperative, Inc. and others in Auction 97 (See FCC Form 175, File No. 0006457336, Agreement: Joint Bidding Agreement with FTC Management Group, Horry Telephone Cooperative, Inc., Sandhill Communications, LLC and Atlantic Seawinds Communications, LLC); 35. Wolverine Wireless, LP had a JBA with United States Cellular Corporation (US Cellular) in Auction 97 (See FCC Form 175, File No. 0006456863, Agreements: Joint Bidding Agreement with United States Cellular Corporation and Wolverine Wireless, L.P.; Bidding Agreement with Advantage Spectrum, L.P. and United States Cellular Corporation); and 36. Advantage Spectrum, L.P. had a JBA with United States Cellular Corporation (US Cellular) in Auction 97 (See FCC Form 175, File No. 0006457325, Agreements: Joint Bidding Agreement

The Honorable John Thune May 18, 2015 Page 21 with United States Cellular Corporation and Wolverine Wireless, L.P.; Bidding Agreement United States Cellular Corporation and Advantage Spectrum, L.P.).