TR Daily FCC's 4.9 GHz Band Regime Modified Over Dem, Public Safety Objections
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Wednesday, September 30, 2020

FCC's 4.9 GHz Band Regime Modified Over Dem, Public Safety Objections

The FCC voted 3-2 today to modify its framework for the 4940-4990 megahertz band over the objections of Democratic Commissioners Geoffrey Starks and Jessica Rosenworcel and public safety entities, which complained that the new regime would hinder the ability of first responders to use the frequencies. A dozen public safety groups had asked Mr. Pai to pull the item from today's agenda (TR Daily, Sept. 21), and one of the groups said it would challenge the item adopted today.

"In the 18 years since the FCC designated the 4.9 GHz band for public safety use, only about 3.5% of all potential licensees have taken advantage of this spectrum opportunity, and this spectrum remains largely unused outside major metropolitan areas," an FCC news release said on adoption of a report and order and further notice of proposed rulemaking in WP docket 07-100 at today's monthly meeting. "The rules adopted today establish a new framework that will empower eligible states to put 4.9 GHz band spectrum to its highest and best use and to allow new partnerships with electric utilities, FirstNet, and commercial operators to increase usage of this spectrum, while protecting existing public safety operations. And by expanding use of the 4.9 GHz band, the rules will facilitate the development of a more robust equipment market for the band, addressing a problem that to date hampered efforts to deploy service in the band."

The order "permits one statewide 4.9 GHz band licensee per state to lease some or all of its spectrum rights to third parties—including commercial and public safety users—in those states that the FCC has not identified as a diverter of 911 fees. The Report and Order does not limit or modify the rights of any incumbent public safety licensees, so they will be able to continue to provide existing services. These new rules also eliminate the requirement that leased spectrum must be used to support public safety but would require lessees to adhere to the informal coordination requirements applicable to the band," the news release added.

"The Further Notice of Proposed Rulemaking also adopted today proposes a new state-based licensing regime for public safety operations in the band, which would complement the new leasing regime," the news release continued. "The Further Notice proposes to make permanent the current freeze on new applications and grandfather all current public safety licensees. It also proposes to allow states without a statewide license to obtain such a license and seeks comment on the creation of a voluntary state band manager to coordinate operations in the band. Lastly, it seeks comment on additional ways to implement and facilitate robust use of the band, including steps to address expanded access in states that divert 911 fees, the use of dynamic spectrum sharing, and ways to encourage collaboration across jurisdictions."

In 2018, the Commission unanimously adopted a sixth further notice seeking views on ways to promote more intensive use of the 4.9 gigahertz band (TR Daily, March 22, 2018). Republican Commissioners then emphasized the potential benefit of repurposing the band for commercial purposes, or at least opening it up to additional usage, citing the fact that the spectrum had not been heavily used since the Commission made it available for public safety agencies in 2002.

In response to the 2018 item, the National Public Safety Telecommunications Council expressed support for sharing the band with critical infrastructure industry (CII) entities and opposed reallocating and auctioning the spectrum for commercial use (TR Daily, July 9, 2018). A number of utility trade groups expressed support for a band plan submitted by NPSTC and emphasized their members' need for additional spectrum.

In their dissenting statements today, Commissioners Starks and Rosenworcel complained that the FCC's action would harm public safety agencies at a time when they are facing multiple challenges, including the COVID-19 pandemic, protests, wildfires, and hurricanes and tropical storms.

"At a time when our public safety organizations are stretched to the limit and their communications needs are increasing, the Commission is adopting with no notice and comment an approach that is not only unwanted but runs contrary to years of public safety spectrum policy," Mr. Starks said. "Since this proceeding first began, the FCC has considered many different options to increase spectrum usage in the 4.9 GHz band while protecting critical public safety operations. It's black letter law that agencies must provide adequate notice and an opportunity to comment before adopting a rule. But at no point have we ever proposed effectively delegating the Commission's spectrum authority over the band to state governments. I therefore already had serious concerns about whether the draft order circulated three weeks ago satisfied the Administrative Procedures Act. If the original draft put us on the edge of a precipice, the current one drives us off the cliff. The final Report and Order now disqualifies states from participating in the State Lessor model if they engage in '911 fee diversion,' a concept that another item on today's agenda frames for debate [see separate story]. This proceeding has never sought comment on that issue or anything like it, and there is no way that commenting parties, and the governments, public safety organizations and citizens that will be adversely impacted, would have reasonably known to comment on the idea. This approach is facially deficient as a matter of administrative law.

"Beyond serious procedural flaws, this decision is likely to have serious policy consequences," Mr. Starks added. "By pushing management of the 4.9 GHz band to the states, the majority risks creating dozens of inconsistent approaches to this valuable spectrum resource. States have vastly different interests and levels of spectrum expertise and will undoubtedly take different approaches to issues like interoperability, security, and interference protection. As a result, public safety usage of the 4.9 GHz band may actually become less efficient, secure, and reliable—even as commercial interest remains meager at best. I recognize that the 4.9 GHz band presents a difficult challenge. But I wish that we had withdrawn this item to work on fully addressing the public safety community's concerns. This isn't the moment to take chances with critical public safety spectrum."

"This decision is unfortunate," said Ms. Rosenworcel. "It is not the right way forward for the 4.9 GHz band. It is a slapdash effort to try to foster use of this spectrum by giving states the right to divert public safety communications in exchange for revenue. This approach has virtually no support in the record. However, it does have opposition from a wide range of stakeholders from wireless carriers to public safety officials."

Ms. Rosenworcel noted that "relatively few" of the 90,000 public safety licensees that are eligible to obtain 4.9 GHz band licenses have done so. "That's because there is a limited vendor ecosystem supporting this band, so it is hard to acquire equipment and costly to deploy it. As a result, for the past few years the Federal Communications Commission has sought comment on how to help public safety make use of these airwaves and what more can be done to encourage a robust market for equipment," she added.

"In this decision we abandon this course and decide that these airwaves no longer need to support public safety. We clear the way to kick first responders off this spectrum and then cede this agency's authority over the band to state licensees who will be empowered to lease these airwaves to third parties to generate revenue. This adds up to a reduction in public safety communications with a more fragmented market for equipment and a 5G future with a whole bunch of the same problems we had with leases in the 2.5 GHz band that—remember—we went to great efforts to dismantle in the not-too-distant past," Ms. Rosenworcel said. "What a mess. It doesn't have to be this way. There's a reason so many entities have come together to oppose this reorganization of the 4.9 GHz band."

FCC Chairman Ajit Pai and his Republican colleagues defended the actions that he and his Republican colleagues took today.

For example, in response to a question during a call with reporters after the meeting, Mr. Pai said that "we are confident we provided adequate notice consistent with the requirements of the Administrative Procedure Act."

In his written statement on the item, he said, "The Commission's rules siloed this spectrum, which led to a limited amount of niche, expensive equipment available for use in the band. The story of the 4.9 GHz band became one of spectrum haves—primarily in large cities such as New York City, Los Angeles, and Seattle—and have nots—namely, the 96.5% of potential licensees that have not obtained licenses for 4.9 GHz spectrum, particularly the smaller and rural jurisdictions that cannot afford to deploy in the band.

"Half a decade later, this unacceptable state of affairs persists," he said. "The 4.9 GHz band remains valuable spectrum—and it remains underused and in regulatory limbo. To maximize the value of this public resource for the American people, today we revise our rules by empowering eligible states to put the 4.9 GHz band to its highest and best uses. We will harness the power of our Secondary Markets framework to create leasing opportunities for statewide entities in states that do not divert 911 fees for non-911 purposes.

"Under our new approach, we will allow a single state government entity to lease covered spectrum in this band while maintaining and protecting incumbent public safety licensees' operations. We recognize the simple truth that what works for New York City may not make sense in rural West Virginia; therefore, we give lessors the right to choose what is best for citizens of their state: They can enter into leases with public safety and non-public safety entities alike. If an eligible state wants to lease its spectrum to FirstNet for use in its Nationwide Public Safety Broadband Network, it can do so. If it wants to lease the spectrum to a commercial entity to use for deploying a dedicated public safety broadband network, it can do that. If the state wants to lease spectrum in less densely populated areas to a wireless Internet service provider, an electric utility, or another critical infrastructure industry (or a mix of all three) and retain the spectrum in more densely populated areas, it can do that too."

"The approach we adopt today may not be perfect. But it's better than any of the alternatives that have been proposed," Mr. Pai added. "And one thing we know for sure is that regulatory inertia is not the best option. The 4.9 GHz band is well-suited to meet the nation's growing demand for mid-band spectrum, and this Commission will not stand idly by and let this spectrum continue to largely lie fallow. Leasing arrangements will create significant opportunities for commercial access while protecting incumbent public safety operations and generating substantial potential revenues that states can use to strengthen public safety services. Our flexible, forward-thinking framework represents the most viable path for making this public resource an actual resource for the public."

"The underlying premise of the item before us is incredibly sound," Commissioner Mike O'Rielly said. "The 4.9 GHz band is vastly underutilized—and not just by a little bit. Seeking to produce greater efficiency and increase the uses of 50 megahertz of spectrum, at a time when the premium for spectrum is at an all-time high, shouldn't be controversial. And, this scarcity is precisely why the Commission must take action as soon as possible, not only on this band and the 3.1-3.55 GHz frequencies considered today [see separate story], but also on the 5.9 GHz band.

"While I certainly respect and support our public safety officials and truly appreciate all that they do to protect our communities, no Commission should let spectrum essentially lay fallow based on the notion that someday the allocation just might, possibly be widely used for its intended purposes," he added. "The messages of 'we intend to use it if certain conditions are met' or 'it'll be needed someday' are no longer credible or sufficient."

"My first action when this item was circulated was to request a reversal of course and seek full commercialization of the band, while protecting existing incumbent systems," Mr. O'Rielly continued. "That is consistent with my approach to the NPRM and is driven by the fact that every expert admits that the U.S. must free more spectrum to meet the demand for future commercial wireless services. While this spectrum may not be an ideal 5G band on its own, it has been identified by the wireless industry as a very good candidate for that purpose if the Commission takes certain actions. Sadly, my request didn't win the day with my colleagues.

"Compelled to pivot, I have tried to live within the rather, let's say, interesting approach taken in this item. I do have some concerns that this will just create another EBS [educational broadband service]-like mess, kicking the proverbial can and forcing a future Commission to revisit this whole structure," the Commissioner said. "It is not entirely clear how or whether it will work at all, as proposed. There is also the distinct possibility that this item won't necessarily solve anything, but instead may even prolong uncertainty. I am able to support the item, however, because, at the very least, it moves away from the status quo towards somewhat improved usage and commercialization of the band. Moreover, the modified version excludes states that are diverting 9-1-1 fees to other purposes from reaping any benefits from this spectrum largesse—such as New Jersey, New York, Rhode Island, and certain counties in Nevada."

"In the end, we will just have to wait and see if any of the item's structure gains traction or survives future policymakers' second guessing. Having extensive experience on these matters, I'm a bit skeptical that will be the case," Mr. O'Rielly said.

"For nearly two decades, the FCC has designated this 50 MHz swath of spectrum for public safety use. And yet after all this time, by our count, only about two percent of eligible public safety entities have become licensees. There are many causes for this underinvestment; availability and cost of equipment, scale, and an inefficient sharing regime are just a few," Commissioner Brendan Carr said.

"The status quo isn't working. So today we set out to fix these problems for the benefit of states and public safety officials alike," he added. "We do so by empowering local leaders—not those of us sitting here in Washington—to determine the highest and best use of this spectrum based on those elected officials' own assessments of local needs. They can keep using this spectrum for public safety (and do so more efficiently due to the new rules we put in place), or they can lease these airwaves and use the revenue to fund public safety or other mission critical initiatives. They have the choice, and I trust them to make the right call for their communities. … If there ever were a time for our agency to give public safety a hand, to get rid of some old rules, to open a path for funding, now would be that time. So we take that step today and empower our country's local leaders to determine how best to use this spectrum."

Mr. Carr was asked on a call with reporters after the meeting why he kept referring to local leaders when, in fact, states will make decisions about the spectrum. He said he refers to state and local leaders as one category, as opposed to federal leaders.

A dozen of public safety groups had asked Mr. Pai to pull the item from today's meeting agenda. AT&T, Inc., which is the First Responder Network Authority's network partner, also expressed opposition to the item, while Verizon Communications, Inc., said it opposed assigning the spectrum to FirstNet. T-Mobile US, Inc., said the FCC should seek comment on whether public safety licensees should be able to sell spectrum rights to non-public safety entities.

In a joint statement today, 11 public safety groups criticized the FCC's action.

"The majority, consisting of Chairman Pai and Commissioners O'Rielly and Carr, took this action against the wishes of a multitude of national public safety associations," they said. "Prior to today's order, the FCC's rules hamstrung public safety from making the best use of this important spectrum band. For years, public safety repeatedly offered specific proposals to the FCC to improve these rules so that law enforcement, fire, EMS, and 9-1-1 professionals could benefit from the multitude of broadband applications this band would make possible. Instead of granting these requested rule changes, the majority continued a false narrative that public safety is to blame for any underutilization and ignored public safety's needs in an attempt to benefit commercial users. Further, the FCC took this action while failing to provide sufficient notice of its actions. With public safety professionals facing unprecedented national emergencies and natural disasters, the timing of the majority's action is especially unfortunate and misguided."

Signing onto the filing were the Association of Public-Safety Communications Officials-International, International Association of Chiefs of Police, International Association of Fire Chiefs, Major Cities Chiefs Association, Major County Sheriffs of America, Metropolitan Fire Chiefs Association, National Association of Emergency Medical Technicians, National Association of State EMS Officials, NPSTC, National Sheriffs' Association, and Western Fire Chiefs Association.

In a separate statement, NPSTC said that it "is disappointed that the FCC did not follow the recommendations we made for 4.9 GHz. The NPSTC proposal would have resulted in a complete database of current and future use, implemented nationwide frequency coordination to prevent uncertainty due to interference, allowed for some dedicated uses like robotics, and opened use of the band to critical infrastructure organizations. This would have assured that the band would serve the needs of public safety well into the future. Under the FCC's plan, there is no certainty that public safety needs will be met, based on the decisions made in each state. The plan promotes a profit motive at each state rather than assuring adequate public safety access to the band. The marketplace model simply does not work for public safety which is a government responsibility even if it operates at a net loss. We do strongly support the 911 fee diversion language and recognize the efforts of Commissioner [O'Rielly] to bring action on this issue. We look forward to providing comments to the further notice."

The Public Safety Spectrum Alliance, which has argued that the FCC should assign the 4.9 GHz band public safety spectrum to FirstNet, said that it would not give up.

"We are extremely disappointed by the FCC's action that jeopardizes public safety's access to spectrum critical to life-saving operations. Today's action by the FCC shows clearly that commercial interests won out at public safety's expense," said Jeff Johnson, a PSSA leader who is chief executive officer of the WFCA and former vice chairman of FirstNet. "This spectrum was allocated by the FCC to public safety after 9/11 to be part of the interoperability solution for first responders. When will our government authorities put the interests and safety of public safety and the communities they serve ahead of commercial interests? The FCC itself has acknowledged, the 4.9 GHz band has been under-utilized because of the FCC's complicated rules and the narrow use cases envisioned by the FCC in 2002. And yet today they take this action when the record does not support such an action as was pointed out by Commissioner Rosenworcel."

"Our legal counsel is preparing a list of options for consideration," added Chris Moore, another PSSA leader who is a former San Jose police chief and now a principal at Brooks Bawden Moore LLC. "Once we have reviewed these options, we will quickly move forward and take action to seek reversal of this clearly arbitrary and harmful decision. We would also like to publicly thank those commissioners that voted against this ill-conceived plan."

"The nation's fire chiefs are disappointed in the Federal Communications Commission's (FCC) decision to license dedicated public safety spectrum in the 4.9 GHz band to the states" Kenneth Stuebing, first vice president of the IAFC, said in a separate statement. "This spectrum is used for critical fire and EMS operations across the nation. We urge the FCC to ensure that the states protect incumbent public safety users as it begins the process of granting these licenses. Also, we recommend that state fire chiefs organizations contact their state governors' offices to protect this spectrum for public safety use."

Joan Marsh, AT&T's executive vice president-regulatory & state external affairs, said, "The 4.9 GHz band, while currently under-utilized, contains enormous potential to provide more expansive support of public safety communications. Informal coordination requirements have limited the spectrum band's usage to date, and we appreciate the FCC's efforts to consider ways to expand its use while ensuring the spectrum remains allocated to public safety. As the Commission moves forward, we will continue to support licensing rules that drive toward more efficient nationwide coordination and more effective use of this spectrum by public safety entities across the U.S."

Louis Peraertz, VP-policy for the Wireless Internet Service Providers Association, said that his group supports the 4.9 GHz band item.

"Opening the 4.9 GHz band to a much wider range of non-public safety uses is a very positive step forward," said Michael Calabrese, director of the Wireless Futures Project at the New America Foundation's Open Technology Institute. "It is extremely underutilized. At the same time, the unexpected conditions on state eligibility and the undeveloped nature of the process for sharing the band suggest that the Commission has far more work to do before there is a final resolution on how best to encourage more intensive and productive use of the band."

"As our nation's electric, gas, and water utilities modernize their infrastructure, access to spectrum is critical to ensure the continued safe, reliable and secure delivery of essential energy and water services," said Sheryl Riggs, president and CEO of the Utilities Technology Council. "Utility communications systems underpin the reliable, resilient operation of essential electric, gas, and water services, and UTC looks forward to working with states to explore opportunities for utilities to access spectrum in the 4.9 GHz band."

States did not weigh in on the item before its adoption. The National Governors Association said today that it had no comment. —Paul Kirby, [email protected]

MainStory: FCC FederalNews PublicSafety WirelessDeployment SpectrumAllocation

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