CommLaw Monitor News and analysis from Kelley Drye’s communications practice group Wed, 03 Jul 2024 07:25:54 -0400 60 hourly 1 FCC Will Seek Comment on Auction Procedures for 3.5 GHz PALs Tue, 24 Sep 2019 11:19:14 -0400 At its Open Meeting on Thursday (September 26), the FCC will be set to adopt a Public Notice that seeks comment on bidding procedures for Auction 105 – the long-anticipated auction of Priority Access Licenses (“PALs”) in the 3550-3650 MHz (“3.5 GHz”) band. According to a draft of the Public Notice released in early September, the Commission will auction seven unpaired 10-megahertz channels in each county-based license area for a total of 22,631 PALs nationwide. The Public Notice also seeks comment on allowing bidders the option to bid at a Cellular Market Area (“CMA”) level in the 172 top CMAs that incorporate multiple counties and are classified as Metropolitan Statistical Areas (“MSAs”). We identified this “package bidding” as a potential cause for dispute at this bidding procedures stage in our November 5, 2018 post on the Report and Order that modified the 3.5 GHz Band licensing regime.

In the October 2018 Report and Order, the Commission sought to promote greater investment in the band, by 5G proponents in particular, by making PALs more attractive to commercial mobile service providers. The Order sought to accomplish this by, among other things, increasing the size of PAL license areas from census tracts to counties (with the potential opportunity for package bidding in MSAs), and extending license terms from three to ten years with a renewal expectancy.

Since that Order, the Commission has moved forward with testing and approvals for three Environmental Sensing Capability (“ESC”) operators (Commscope, Federated Wireless and Google) to facilitate dynamic spectrum sharing (“DSS”) in the 3.5 GHz Band and six Spectrum Access System (“SAS”) Administrators (Amdocs, Commscope, Federated Wireless, Google and Sony) for initial commercial deployments. At a September 18, 2019 event, the FCC marked the launch of commercial services in the band – the General Authorized Access (“GAA”) operators that are licensed by rule and must avoid interference to both PALs and incumbents in the band.

In the Public Notice, the Commission seeks comment (penciled in for October 28, and replies by November 12), on the procedures for Auction 105 for the PALs. Individual licensees can hold up to four PALs out of the seven within the band in any license area at any given time. The Commission is proposing to use an ascending clock auction design in which anonymous bidders indicate their demands for generic license blocks in license areas. Unlike Auctions 102 and 103 for the millimeter wave Spectrum Frontiers bands, in the so-called 28 and 24 GHz Bands, respectively, PALs will not be assigned specific frequencies during the auction and instead will be authorized to use frequencies associated with their licenses as they are dynamically assigned by SAS Administrators, in accordance with the three-tier dynamic sharing arrangement in the band. The Commission plans to start the auction on June 25, 2020.

Perhaps the most politically controversial aspect of the Public Notice will be its proposal to allow bidders to elect, prior to the start of the auction, to bid at CMA-level for blocks in all of the counties comprising MSAs, which are the largest CMAs in the large metropolitan areas that incorporate multiple counties. In her dissent to the October 2018 Report and Order, Commissioner Rosenworcel (the lone Democrat at the time) lamented the “lost opportunity” in the band to auction smaller licenses for shorter terms as the original Obama-era rules provided for, which she believed would foster innovative and flexible new services and sensors. She criticized increasing the geographic size of licenses from census tracts to counties, and may well question allowing bidders seeking PAL MSA-wide access in the large metropolitan areas. Whether there will be a significant opposition to this concept in response to the new Public Notice, once it is adopted, will be one of the things to watch for as this long-anticipated auction draws near in what is recognized as a key candidate band for 5G deployment.

Google Street View Investigation Indicates Expansive View of FCC Enforcement Powers Thu, 11 Nov 2010 17:26:24 -0500 News reports last week that the FCC is investigating possible violations by Google underscore the expansive view that this FCC is taking of its enforcement powers. According to reports such as this Wash Post article, the FCC has confirmed that it is investigating Google's alleged capture of user data from open WiFi connections when it gathered information for its Street View product. The FCC investigation comes on the heels of an FTC no action letter released in late October concerning the same actions by Google.

So what is the FCC investigating?

This is the most interesting question resulting from the reports. The FCC, of course, has used its bully pulpit to investigate Google before. But it is not clear here what potential violations the FCC may be investigating. As we've seen, because Google is not a carrier (and clearly was not acting as a carrier in capturing WiFi data), the FCC would have to warn Google before it could impose any fines for its actions. If, as has been suggested, the FCC is investigating whether Google violated wiretapping laws, that, too would suggest an expansive view of FCC powers. The FCC has never issued an order enforcing the Electronic Communications Privacy Act or the Stored Communications Act, the two principal wiretapping statutes, and it is not clear that the FCC has authority to enforce either act.

Unfortunately, the publicly available information does not reveal the nature of the Google investigation. To learn more, we will have to wait for the FCC take action, assuming it has authority to do so.

Overlooked Elements of the Verizon-Google Net Neutrality Proposal Tue, 24 Aug 2010 08:29:16 -0400 Earlier this month, Verizon and Google announced an agreement on the vexing issue of net neutrality. The agreement has been criticized by net neutrality advocates for allegedly permitting a "private Internet," and for excluding wireless services, among other things. Until recently, the provisions in the Verizon-Google "Legislative Framework" that radically alter FCC enforcement have been overlooked.

Four elements of the Legislative Framework are described in detail in this post. These elements would restrict the tools available to the FCC and would raise the standard for FCC fines. In addition, one provision strips the Federal Trade Commission of any potential jurisdiction over broadband Internet access service.

Limiting the FCC to Case by Case Enforcement. First, Verizon and Google propose that the FCC "would enforce the consumer protection and nondiscrimination requirements through case-by-case enforcement, but would have no rulemaking authority with respect to those provisions." This provision would significantly alter enforcement practice today -- where it is well settled that, absent explicit statutory instruction, an agency may choose whether to enforce through adjudication or through rulemaking. Verizon and Google propose that in this instance rulemaking authority be denied.

Substituting Private Arbitration of Disputes. Verizon and Google also propose that another entity assume the FCC's primary role in adjudicating alleged violations. Specifically, Verizon and Google propose that parties be "encouraged" to use "non-governmental dispute resolution processes established by independent, widely-recognized Internet community governance initiatives," with the FCC granting "appropriate deference" to such opinions. Verizon and Google don't say that parties will be forced to use this alternative, but the clear hope is that the primary enforcement capability will be shifted away from the FCC to this private group. It is not clear whether Verizon and Google contend that the private group will have more expertise than the FCC, that it is quicker or less expensive than FCC formal complaints, or that some other reason makes this desirable.

"Knowing Violation" Standard of Liability. The Verizon-Google proposal preserves FCC forfeiture authority, but it appears to substitute a stricter standard than applies to other forfeitures. Under the Verizon-Google proposal, the FCC could impose fines for "knowing violations" of the consumer protection and nondiscrimination standards. This contrasts with Section 503's current standard of "willful and repeated" violations. The FCC has interpreted the "willful" standard to require only that the party knew it was committing the act (or omission), not that it had any intent to violate the Communications Act.

Exclusive FCC authority. Verizon and Google propose that the FCC have "exclusive authority to oversee broadband Internet access service." This provision apparently would preempt any jurisdiction by the Federal Trade Commission, which has asserted that it may apply its consumer protection standards to information services (which include Internet access services). But it is not clear what the FCC's "oversight" authority encompasses, since all regulatory authorities would be precluded from "regulating" broadband Internet access services.

Until last Thursday, these provisions seemed to be overlooked in the proposal. However, two FCC Commissioners made comments at the "Future of the Internet" hearing in Minnesota sponsored by the Free Press Foundation. Commissioner Clyburn declared that "any proposal that favors the FCC being stripped of the rulemaking authority regarding consumer protection and non-discrimination requirements, and any proposal that would advocate that no agency will have authority over Internet access would be impossible for me to embrace." Commissioner Copps expressed similar concerns, warning that the Verizon-Google proposal "would eliminate any meaningful, effective FCC oversight of the open Internet [including] such critically-important responsibilities as the setting of standards and the swift resolution of controversies." I'm sure we will see more discussion of these proposals as we move forward in this debate.