FCC Adopts Latest Spectrum Frontiers Item
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Thursday, June 7, 2018

FCC Adopts Latest Spectrum Frontiers Item

The FCC today adopted its latest item in its spectrum frontiers proceeding to free up frequencies above 24 gigahertz, including resolving outstanding issues regarding the 24 GHz band, making progress in the 37 GHz band, and seeking comment on use of the 26 and 42 GHz bands.

At its monthly meeting, the Commission adopted a third report and order, memorandum opinion and order, and third further notice of proposed rulemaking in GN docket 14-177 and WT docket 10-112 following up on spectrum frontiers items adopted last year (TR Daily, Nov. 16, 2017) and in 2016 (TR Daily, July 14, 2016).

Commissioner Jessica Rosenworcel approved in part and dissented in part in the item, while Commissioner Mike O’Rielly approved in part and concurred in part. Chairman Ajit Pai and Commissioner Brendan Carr approved the item.

A fact sheet released when the item was circulated last month (TR Daily, May 17) noted that the third report and order (1) allows “Upper Microwave Flexible Use Service (UMFUS) licensees to choose a geographic area performance metric, which may be suitable for Internet of Things-type deployments”; (2) adopts “an operability requirement for the 24 GHz band providing that mobile equipment capable of operating on any frequency in this range must be capable of operating on all frequencies in this range”; (3) provides “for sharing of the 24.75–25.25 GHz band by UMFUS and FSS earth stations, including BSS feeder link earth stations”; (4) establishes “six 100 megahertz channels as the band plan for the 37–37.6 GHz band (Lower 37 GHz)”; and (5) eliminates “the pre-auction limit of 1250 megahertz on the amount of mmW spectrum in the 28 GHz, 37 GHz, and 39 GHz bands that an entity can acquire at auction” while establishing a case-by-case review after auctions of UMFUS spectrum.

The memorandum opinion and order declines to reconsider (1) the adoption of geographic area licensing in the 37–37.6 GHz band; and (2) the allocation of the 42 GHz band for satellite use.

The third FNPRM (1) seeks “further comment on how the 42 GHz band could be used for commercial wireless broadband service, including possibly for unlicensed and/or shared use” pursuant to the MOBILE NOW Act, which became law in March (TR Daily, March 23); (2) seeks “comment on making the 26 GHz band available for flexible fixed and mobile use”; (3) seeks “comment on coordination mechanisms in the Lower 37 GHz band between either two or more non-federal entities or between federal and non-federal entities”; and (4) proposes “rules permitting licensing of individual FSS earth stations in the 50 GHz band using the criteria that applies in the 24.75–25.25 GHz band.”

The FCC plans to start a 28 GHz band auction on Nov. 14 and hold the 24 GHz band auction “immediately after” the first sale.

“If we want our 5G future to be bold, we have to acknowledge right here and now that the policies that made us successful in the past may not be the policies that lead to victory in the future. That’s because if we want to be first to the future, we have to move past same-old, same-old spectrum policy and embrace new tools and techniques. In many ways, the actions we take today do just that,” Commissioner Jessica Rosenworcel said. “We take steps to clarify just how we will make more high-band spectrum available for commercial use. We update our performance requirements to provide licensees with flexibility for innovative services beyond just the voice and data universe we know today to one custom-built for the internet of things. That’s important, because this agency needs to recognize that 5G service is about much more than smartphones. We also ensure operability in the 24 GHz band, preventing a future with the kind of device ecosystem problems we have seen in the past. In addition, we make clear that we will preserve a sharing framework in the 37 GHz band. This is important for continued investment and innovation through new spectrum access models.

“But in other respects, I’m afraid today’s action falls short,” Ms. Rosenworcel added. “Specifically, the decision here to limit any pre-auction limits for high-band spectrum and replace them all with post-auction case-by-case review misses the mark. On this aspect of our decision, I dissent.

“To be fair, there may be reason to think that bright-line pre-auction limits on millimeter wave spectrum are unnecessary, given the real technical challenges of bringing this spectrum to market. I also recognize that striking the right balance is not easy at this early stage in the development of 5G service,” the Commissioner added. “However, as our national providers seek to grow bigger and fewer in number, it is important we take steps now to avoid undue aggregation of spectrum in these new markets. This is not some radical notion. It has long been a bedrock of wireless policy. Moreover, it’s an obligation under the law, as section 309(j) charges us with avoiding excessive concentration of licenses by disseminating licenses among a wide variety of applicants.”

Mr. O’Rielly said that “by resolving the outstanding issues surrounding 24 GHz, we have cleared the final policy hurdles in front of conducting an auction, enabling us to move forward as the Chairman announced. Additionally, we rightfully take steps to bring our consideration of the 37 GHz band to conclusion so that this spectrum can be included in a future auction. In this vein, I am hopeful that we can set a specific timeline for upcoming auctions soon, and that they will include the highly anticipated 37 GHz auction and the remaining 39 GHz licenses. As the Commission considers spectrum opportunities in both the mid- and millimeter wave bands, it is important to provide interested parties with sufficient time to prepare for these auctions.”

But he added that there are “some sections of the item that cause me concern. In particular, I believe that the Commission should have reconsidered its prior decision to adopt non-exclusive sharing in the lower 37 GHz band. A preferable framework would have involved exclusive licensees sharing spectrum with federal incumbents. It would have been commonsense to license these frequencies similarly to the adjacent upper 37 GHz band. But, I recognize that this decision may be influenced by our fellow agencies and, therefore, I will concur to the portions of this item related to the lower 37 GHz band.

“My concerns regarding such a sharing paradigm are exemplified in the further notice,” Mr. O’Rielly added. “In setting up what is now being considered a millimeter wave ‘innovation’ band, the Commission stated that sharing will promote a variety of uses, including both fixed and mobile, and ensure that the band is widely utilized. However, it is quite likely that some of the sharing concepts proffered in the notice will have quite the opposite effect. For instance, I question whether the suggested licensing frameworks will work for mobile services, if first-come-first-served licensing will ensure spectrum is put to its highest and best use, and how federal aeronautical operations in the band will co-exist with wireless operations. I look forward to discussing these and other issues with interested parties.

“I am also concerned by the suggestion in the further notice that federal operations could expand in the upper 37 GHz, even if such expansion is limited or on an ‘as-needed’ basis,” Mr. O’Rielly said. “The federal government needs to reduce its spectrum footprint, not expand it. This is why I have stated, along with Commissioner Rosenworcel, that the value of current federal spectrum holdings should be appropriately quantified. I have gone even further, suggesting imposing agency spectrum fees or permitting agencies the ability to surrender spectrum for budgetary relief to facilitate the reallocation of underused federal spectrum to commercial uses.”

The Commissioner also said that he is “deeply troubled by the portions of the item that discuss post-auction and secondary market case-by-case spectrum aggregation review. As I stated last year, these spectrum screens should be eliminated. First and foremost, we continue to put more spectrum out into the marketplace. To date, we have made 4950 megahertz of licensed millimeter wave spectrum available; we are also inquiring into the 26 GHz band, which includes more than two gigahertz of spectrum; and, hopefully, we will open other bands that have been teed up, like 32 and 50 GHz. Altogether, this provides abundant opportunities for those seeking high-band licenses, and, of course, there is also unlicensed spectrum. Additionally, there is still no evidence of the wireless industry ever ‘warehousing’ spectrum, and, in fact, the existence of such ‘foreclosure’ behavior was clearly debunked during the 600 MHz incentive auction experience. I was hoping that we would finally put an end to this charade.”

Chairman Pai stressed that with today’s action, the FCC is “putting more spectrum on the table. Specifically, we propose to make available 2.75 GHz of spectrum across the 26 GHz and 42 GHz bands for flexible wireless use. I look forward to the record that develops and working with our federal partners to hopefully allocate this spectrum for more efficient uses. Moreover, we’re continuing to make progress on spectrum bands we’ve already targeted for new and innovative uses. For instance, we push forward on putting the Lower 37 GHz band to good use by establishing a band plan and asking about the appropriate coordination mechanisms for sharing with both federal and non-federal users. In that band, we have to work toward a licensing framework that preserves the band’s viability for various potential users.”

Commissioner Brendan Carr ticked off a number of the actions in the item adopted today that he indicated he supported.

“With respect to the Lower 37 GHz Band, I might have struck a difference balance than the one the agency reached in 2016. But stakeholders have not shown significant interest in revisiting that decision here and, overall, the item reaches the right result by promoting greater commercial access to millimeter wave spectrum. So it has my support,” he said. “Going forward, the Commission is going to keep up the work of identifying low-, mid-, and high-band spectrum, and we will continue to remove unnecessary barriers to infrastructure deployment. I look forward to the work on those issues.”

“NTIA applauds the Commission’s actions today to move forward with taking steps to increase access to high-band spectrum both for industry efforts such as 5G, and government users,” said David J. Redl, head of the National Telecommunications and Information Administration. “This is a priority for NTIA in light of the critical role spectrum plays in our economy and in the execution of critical government missions. We look forward to continuing to work constructively with the FCC, the federal agencies, and industry as we seek to best enable innovative and diverse use of these bands.”

Industry entities welcomed the item adopted today, but Public Knowledge offered a mixed review.

“CTIA and the wireless industry commend the FCC for taking steps to make more high-band spectrum available for 5G wireless use,” said Scott Bergmann, senior vice president-regulatory affairs for the trade group. ”A pipeline of low, mid, and high band spectrum is essential to winning the global race to 5G and spurring new industries, such as the Internet of Things and autonomous vehicles.”

Joan Marsh, AT&T, Inc.’s executive vice president–regulatory & state external affairs, said, “As we move closer to auctions later this year, the FCC is taking important steps to establish performance and operability requirements for mmWave spectrum. Making additional mmW spectrum available for flexible wireless use will play a key role in deploying 5G networks, driving US leadership and bringing to consumers the promise of next-generation wireless services and technologies.”

Verizon Communications, Inc., said it “is encouraged to see the Commission continue with forward progress on the high-band spectrum that will be an important building-block for 5G.”

Charter Communications, Inc., said it “applauds the Federal Communications Commission for fueling American innovation by making more 5G spectrum available. Today’s actions lay the foundation for companies like Charter to build a future of ubiquitous connectivity for our customers and successfully compete in the global race to 5G.”

Margaret McCarthy, executive director of Mobile Future, said, “With today’s vote on further action in the Spectrum Frontiers proceeding, the FCC continues to advance U.S. leadership in the race to next generation wireless networks. Building on the work the Commission has already done to bring millimeter wave spectrum to market, today’s item makes further reforms to unleash spectrum to fuel the 5G economy. Importantly, the Commission is eliminating the pre-auction spectrum cap for the 28 GHz, 37 GHz and 39 GHz bands, allowing greater flexibility for auction participants that will promote innovation and efficient use of millimeter wave spectrum. With the right rules in place, this high band spectrum can be put to use to deliver the benefits of 5G to America’s wireless consumers.”

Michael Calabrese, director of the Wireless Future Project at the New America Foundation’s Open Technology Institute, said, “The Commission’s decision to authorize non-exclusive sharing in the bottom 600 megahertz of the 37 GHz band creates a valuable opportunity for a wide variety of small operators and local users to gain access to high-capacity spectrum. Extending dynamic and shared access to this band on a co-equal basis with NASA and other federal users on a license-by-rule basis represents another innovative FCC spectrum policy advance that will enrich America’s future 5G wireless ecosystem.”

But Phillip Berenbroick, senior policy counsel at Public Knowledge, was less positive about the item adopted today.

“As with much of this Commission’s spectrum policy, today’s vote on several items in the ongoing Spectrum Frontiers proceeding is a case of two steps forward, one step back. The Third Report and Order demonstrates that in some instances, the Commission has learned from past mistakes, while in others, it is determined to repeat them,” Mr. Berenbroick said.

“The Commission’s action to require operability throughout the 24 GHz band is a pro-competitive step that will help create economies of scale, lowering the cost of devices operating in the 24 GHz band, and ensuring that carriers and consumers aren’t forced to relive the problems that plagued the Lower 700 MHz band. Additionally, the Commission’s decision to ratify its 2016 decision to make the 600 megahertz between 37–37.6 GHz available for non-exclusive, shared use, will allow small carriers and other entities to utilize the Lower 37 GHz band for a variety of use cases,” Mr. Berenbroick added. “Ensuring opportunities for sharing and lowering barriers for a variety of users to access spectrum is critical to promoting innovative and efficient use of scarce public resources, deployment of competitive 5G mobile broadband networks, and wireless deployments in rural and unserved areas.”

But he said that “the Commission’s decision to eliminate its pre-auction spectrum aggregation limits in the 24 GHz, 37 GHz, and 39 GHz bands demonstrates a failure to learn from previous mistakes. As the Commission and the Department of Justice recognized in the consideration and adoption of the FCC’s 2014 Mobile Spectrum Holdings Order, excessive concentration of critical spectrum resources by already-dominant carriers harms competition and leads to fewer choices and higher prices for consumers.

“In 2016, the FCC recognized the largest mobile carriers had incentives to warehouse mmW spectrum to prevent or delay competitive deployments by rivals, and established pre-auction limits for several mmW bands. Today’s action walks back those pro-competitive rules. As a result, already-dominant carriers will be empowered to starve their competitive rivals, including carriers that primarily serve rural and other underserved communities, of the spectrum resources needed to bring next-generation mobile broadband to communities that remain on the wrong side of the digital divide,” Mr. Berenbroick said. “This action, in combination with the Commission’s previous approval of mmW acquisitions by the largest mobile carriers, is likely to harm wireless competition and make it more difficult for regional and rural wireless carriers to access the spectrum they need to deploy next-generation networks.”— Paul Kirby, paul.kirby@wolterskluwer.com

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