As the DOD completes its efforts to enable sharing with non-federal terrestrial communications systems, the FCC will consider an Order to adopt its proposal to remove the secondary, non-federal radiolocation and amateur service allocations from 3300-3550 GHz as a first step toward making additional spectrum available for commercial wireless communications and federal/non-federal sharing. The draft Order would allow incumbent licensees to continue in-band operations on a time-limited basis while the FCC finalizes plans to reallocate 3450-3550 MHz. In general, the FCC seeks to maximize the entire 3100-3550 MHz band for potential flexible use operations in the future. Accordingly, non-federal radiolocation licensees in the 3300-3550 MHz range would be transitioned to the 2900-3000 MHz radiolocation band on a secondary basis, and amateur licensees currently in 3300-3500 MHz would have to move to other existing amateur radio allocations they choose. Moving existing radiolocation operations below 3000 MHz is characterized as a measure to retain the potential for future flexible use licensing of the 3100-3300 MHz band, in addition to 3300-3550 MHz. The draft Order would also permit continued experimental radiolocation operations under Part 5 – something that Lockheed Martin and Boeing pushed for ­­– under the same limitations as they are allowed in other flexible use bands requiring operations on a non-interference basis.

The FNPRM would seek comment on proposed subsequent steps: allocation changes to enable future commercial flexible use (except aeronautical mobile) where possible on an exclusive, not shared basis; coordination frameworks between flexible users and federal incumbents; relocation logistics for non-federal secondary users (amateur radio operators and non-federal radiolocation); and technical, licensing, and operating rules for new flexible use licensees including possible protections to flexible use licensees in the 3450-3550 MHz band from federal operations in adjacent bands, i.e., below 3450 MHz and above 3550 MHz. The FNPRM proposes licenses issued by auctions in 20 megahertz blocks on an exclusive geographic basis. The proposed sharing mechanism, on which the FCC would seek comment, would prohibit incumbent federal systems operating in the 3450-3550 MHz band from causing harmful interference to co-band non-federal operations in the band, except that non-federal systems would not be entitled to protection from federal operations and may be subject to other restrictions (1) in to-be-established limited Cooperative Planning Areas, such as military training facilities, test sites, Navy home ports, and shipyards; (2) in Periodic Use Areas where DoD will need episodic access to all or a portion of the band; and (3) during times of National Emergency.

The FCC hopes that federal agencies will file transition plans for the 3450-3550 MHz band by April 2021 and that licensed flexible use operations will commence as soon as early 2022.

Meanwhile, this is not necessarily the final chapter of opening up spectrum for flexible use in the 3 GHz Band. NTIA’s July 2020 report suggested that some federal/non-federal spectrum sharing below 3450 MHz might be possible, but would require additional analysis. The report identified four principal areas for further exploration of additional sharing in 3100-3450 MHz: (1) a more in-depth assessment of the extent each of the federal systems is used; (2) the development of a reliable mechanism for commercial operations to coordinate when federal systems are operating; (3) assessment of the potential for relocating federal systems, including nationwide airborne systems; and (4) consideration of improved out-of-band emission limits for commercial operations. As noted above, the FCC’s proposals in the draft Order and FNPRM anticipate prospects for making even more 3 GHz flexible use spectrum available in the future.

You will find more details on the significant May meeting items after the break:

China Mobile Authorization Denial: The draft Order would reject China Mobile USA’s application for authority to provide telecommunications services between the United States and foreign points. The FCC would find that, while foreign government control of a carrier is not (by itself) grounds for denial, the Chinese government’s ultimate control of China Mobile USA could result in covert monitoring and disruption of U.S. communications networks. The FCC also would note prior challenges with prosecuting Chinese-owned companies for violations, even when such entities are incorporated under U.S. law. Unlike prior grants of authority involving foreign-owned carriers, the FCC would conclude that the pervasiveness of Chinese government control over China Mobile USA undermines any potential mitigation measures the company could implement to address its national security concerns.

Shared Use of the 1675-1680 MHz Band: The draft Notice of Proposed Rulemaking (“NPRM”) would request input on permitting fixed/mobile wireless services (except aeronautical mobile services) to share the 1675-1680 MHz band on a co-primary basis with incumbent federal weather monitoring operations. The item appears to be a response to language in President Trump’s proposed 2020 budget that would effectively require the Commission to act on a petition filed by Ligado Networks by requiring the FCC to auction this spectrum for wireless broadband use subject to sharing arrangements with Federal weather satellites. Satellite and weather data stakeholders have previously opposed Ligado’s use of the 1675-1680 MHz band because of concerns that its use would result in harmful interference to meteorological satellites that provide real-time weather and related environmental information. Non-federal operators would be required to comply with power limits and other restrictions designed to protect federal users in the band from harmful interference. The FCC would propose licensing the spectrum in unpaired five-megahertz blocks on a partial economic area basis through competitive bidding. The spectrum auction likely would take place in 2020.

Toll Free Number Auction: The draft Public Notice would set the stage for the auction of over 17,000 numbers in the recently-opened 833 toll free code. While the FCC traditionally assigned toll free numbers on a first-come, first served basis, it adopted rules last year to allow for auctions to improve efficiency and fairness in the toll free number assignment process. The Public Notice would request comment on the application, bidding, assignment, and payment procedures for the auction. Under the FCC’s plan, government entities and non-profit health/safety organizations could petition the agency to set aside specific 833 toll free numbers for their use. The auction would consist of a single round overseen by Somos, Inc., the Toll Free Numbering Administrator. Winning bidders would be able to sell the rights to their toll free numbers through secondary market transactions following the auction. The FCC has not indicated when it expects the auction to occur.

VRS Reform: The draft Order and Further NPRM would facilitate direct video calling between VRS users and customer support call centers by allowing such centers to list their videophones in the VRS numbering directory. To address potential program fraud, the item would require per-call validation of VRS user registrations and force VRS providers to register enterprise and publicly-available videophones. In addition, the FCC would prohibit VRS providers from offering non-VRS-related inducements to encourage customers to sign up for their services. The draft item also would request input on whether the FCC should make permanent a pilot program allowing VRS calls to be handled by at-home interpreters. The item would further ask whether the FCC should allow VRS providers to offer service to new users pending identity verification and require users to “log-in” before using enterprise and publicly-available videophones.

2019 Regulatory Fee Assessment: The draft NPRM would seek comment on the FCC’s proposed collection of $339,000,000 in regulatory fees for fiscal year 2019. The fees would be due in September 2019 and generally would follow the methodology used in past collections. Nearly all service categories would see at least a slight increase to their regulatory fees in order to cover the $16 million projected increase to the agency’s budget and operators should review the NPRM’s proposed fee schedule for the expected impact to their services.

Rounding out the major actions that will be voted on later this month at the Open Meeting, the FCC released a draft item that would offer regulatory relief to rate-of-return carriers providing Business Data Services (“BDS”). The proposed items are sure to impact every sector of the communications industry, from the largest wireless carriers to the smallest broadband providers and device manufacturers to business, industrial, and public safety radio users, while potentially transforming large-scale data transport services.

Enabling Unlicensed Use of the 6 GHz Band: The FCC has long been pressed to expand unlicensed use of the 6 GHz Band. It now seems poised to commence a rulemaking to consider just that, while ensuring incumbent licensees are protected. The draft proposed rulemaking would allow unlicensed devices to operate in the 6 GHz Band, subject to certain restrictions that vary depending on the specific frequencies used. The FCC proposes that devices using the 5.925-6.425 GHz and 6.525-6.875 GHz sub-bands would only be allowed to transmit if an automated frequency control (“AFC”) system determines that such use will not cause harmful interference. The FCC noted that these sub-bands currently are occupied by licensees operating point-to-point microwave links and some satellite systems. Meanwhile, devices using the 6.425-6.525 GHz and 6.875-7.125 GHz sub-bands would only be allowed to operate indoors and at lower power levels, but use of these frequencies would not depend on an AFC system. The FCC asserted that these sub-bands are used for mobile and satellite services whose itinerant operations make the use of an AFC system impracticable, while the proposed operating restrictions would seem to offer sufficient protection to incumbents.

Reforming the 3.5 GHz Band Rules: Major wireless carriers have peppered the FCC for almost two years with proposed changes to the geographic license areas for PALs, favoring auctions over larger geographic areas, with longer license periods and expectations of renewal. Smaller providers have supported retaining the smaller census tract licenses adopted in the original PAL framework several years ago. The FCC draft order contains a compromise approach that would issue PALs across the country at the county level. The FCC also would increase the license term for PALs from three years to ten years and make PALs renewable in order to foster long-term investment. Moreover, the FCC would seek to promote greater spectrum utilization through the enhancement of secondary markets in PALs by permitting partitioning and disaggregation of the licenses.

Expanding PLMR Operations in the 800 MHz Band: The FCC has worked for years to increase the efficiency of PLMR operations in the 800 MHz Band. A draft order would, among other things, add 318 new “interstitial” PLMR channels in the 800 MHz Band and terminate a freeze put in place in 1995 that prevented PLMR licensees from gaining access to other license category pool frequencies the 800 MHz Band without a waiver. The FCC also would extend conditional licensing authority above 470 MHz to PLMR stations that operate in the 800 MHz Band and the 700 MHz narrowband, allowing entities to operate for up to 180 days while their applications remain pending. In addition, other changes included in the draft include making new channels available in the 450-470 MHz band for industrial/business radio use in gaps located between PLMR spectrum and other services.

Restructuring Rate-of-Return BDS: The FCC took action in 2017 to deregulate most BDS, which provide dedicated point-to-point transmissions at guaranteed speeds over high-capacity data connections for major businesses, governments, and other large institutions. Under the draft order and proposed rulemaking, certain small rural carriers would be allowed to move from longstanding rate-of-return regulation to “incentive” price cap regulation for some of their BDS offerings. Critically, the FCC would not require these carriers to comply with tariffing, cost assignment, and jurisdictional separations requirements. The draft item would also seek comment on the appropriate regulatory treatment for these carriers’ other transport services, including the need for price controls.

There will be plenty for interested parties to comment on, as we discussed in an earlier blog post providing an overview of the draft NPRM, which was largely retained in the document finally adopted. The FCC is considering myriad options to restructure that spectrum to introduce commercial flexible mobile use and fixed point-to-multipoint operations while protecting incumbent fixed satellite service uses and grandfathered point-to-point licenses. The 4 GHz Band is commonly recognized by the mobile industry, the FCC, and others, as a key mid-spectrum band for next-generation networks and applications, including 5G and the Internet of Things.

It’s worth keeping in mind several other related upcoming deadlines, one definite and the other not yet established. Operators of existing earth stations operating in the 4 GHz Band that are not yet licensed or registered – but which were constructed and operational by April 19, 2018 – have until October 17, 2018, to apply for the license or register. Already, it is reported that several thousand earth stations have taken advantage of the opportunity, but time will soon be running out for those earth station operators that have not taken advantage of the time-limited relief provided by the FCC from its temporary freeze on new registrations and license applications. (Applications for new space stations as well as new fixed point-to-point links are also temporarily frozen, but without exceptions.) For those operators of earth stations that are not yet registered or licensed that want to be considered for protection from interference under any new rules in the 4 GHz Band, this may well be your final opportunity to secure protection. The FCC has proposed making the freezes permanent. Remember that the FCC has waived the typical requirement for coordination reports with the registrations or license applications.

In addition, the date for complying with the certification and information collection requirements applicable to earth station and space station operators adopted in the Order accompanying the NPRM has not yet been set. Compliance with the information collection requirements may be critical to receiving whatever protections the FCC may afford existing fixed satellite service operations. On August 20, the Order was published in the Federal Register which requires: (1) certification by earth stations registered or licensed before April 19, 2018; (2) the submission of certain information by operators of temporary fixed and transportable earth stations; and (3) information applicable to licensed space stations. Earth stations licensed or renewed under the temporary filing window through October 17 will not be subject to the certification requirement. (In contrast with the draft NPRM, the final NPRM adopted by the FCC excluded the upfront collection requirements for operators of 4 GHz Band earth stations other than the temporary fixed or transportable variety, leaving potential collection requirements as something to be considered later in the rulemaking after a record of the need for such data is created and reviewed.) These information collection requirements are subject to the Paperwork Reduction Act and won’t become effective until approved by OMB and a subsequent notice is released setting the compliance date, a process which could take a couple of months or longer. For now, there is not a whole lot to do but wait for that process to play out, although it might be good idea to start gathering the information, particularly for entities that have a lot of earth stations subject to the requirements.

Many other countries are moving forward with plans to make these and/or nearby frequencies available for 5G this year or shortly thereafter, underscoring the FCC’s drive to move forward expeditiously. However, given the variety of views regarding the 4 GHz Band generated in the 2017 Mid-Band Notice of Inquiry (“Mid-Band NOI”), as well as in response to the recent FCC public notice seeking comment to help prepare the report to Congress on the 4 GHz Band required by the recently-passed RAY BAUM’S Act, there is every reason to expect that the precise outcomes of this proceeding will remain uncertain for some time despite the general move toward making more spectrum available for flexible use applications.

The agency’s most significant recent action was to release a public draft of a Notice of Proposed Rulemaking and Order (“Draft NPRM”) that it plans to vote on at its upcoming July 12 Open Meeting. As a general matter, the Draft NPRM makes plain the FCC has before it three primary objectives which, in both the near- and long-term, may be in tension:

• Add a primary mobile allocation to the band (except aeronautical mobile) and propose to clear at least part of the band for flexible mobile use “beginning at 3.7 GHz and moving higher up in the band as more spectrum is cleared.”
• Consider rule changes that “promote more spectrum efficient and intensive fixed use of the band on a shared basis starting in the top segment of the band [i.e., near and below 4.2 GHz] and moving down the band,” namely point-to-multipoint (“P2MP”) services.
• Protect incumbent operations – fixed point-to-point and fixed satellite service (“FSS”) – in the band.

As the FCC recognizes, key challenges will be “to protect existing earth station users while limiting uses that would hamper new intensive terrestrial use of the band” and what protection should be afforded existing fixed microwave links. The FCC will tackle the relative obligations and/or rights that each category of protected incumbents may have under each approach for more intense terrestrial use of the band and determine which, if any, categories of incumbents must new flexible use licensees relocate and under what standards, terms, or rules.

The challenge of protecting earth station users will require information the FCC does not yet have. The same day the FCC released the Draft NPRM, the International Bureau extended by 90 days the recently opened temporary filing window – from the original July 18 deadline to October 17, 2018 – for existing earth station operators to license or register earth stations in the 4 GHz Band that currently are not licensed or registered. When that window was open, the FCC froze all new FSS earth station and fixed microwave link applications and registrations, as applicable, in the 4 GHz Band. Further, the International Bureau, also on June 21, simultaneously issued a second public notice announcing a temporary freeze, effective immediately, on the filing of new space station license applications and new requests for U.S. market access through non-U.S.-licensed space stations to provide service in the 4 GHz Band.

The ostensible purpose of the earth station filing window afforded to operators is to allow the FCC to better understand the extent to which the band is used prior to making changes that could impact those uses. While almost 5,000 earth stations were licensed or registered as of the time of the freeze, many were not. Estimates are that there may be thousands of stations that are not in the database, but were constructed and operational, in use for a variety of non-governmental (e.g., video content) and governmental purposes (e.g., environmental and meteorological data and alerts).

The proof may be in the pudding, meaning the number of station operators that take advantage of the filing window. The Draft NPRM states the FCC’s tentative conclusion to not afford interference protection of any kind to earth station operators who do not both license or register existing operations by the October 17 deadline and also respond to an additional information request (and requirement for a certification of construction and operational status) that the Draft NPRM would direct the International Bureau, the Wireless Telecommunications Bureau, and the Office of Engineering and Technology to issue in a subsequent public notice. Indeed, the Draft NPRM seeks comment on making the freezes permanent (both for earth stations and space stations). The FCC appears to have concluded tentatively that limiting new earth stations in this manner would provide a stable spectral environment for more intensive terrestrial use, an issue to be resolved in the rulemaking based, in part, on the data collected. To complement the data collected as a result of filings made during the current limited window and in response to the forthcoming public notice contemplated by the Draft NPRM, the FCC intends to consult with the National Telecommunications and Information Administration and affected Federal agencies regarding the Federal entities, stations, and operations in the 4 GHz Band.

In addition to better understanding FSS use, the FCC concludes that co-channel sharing between incumbents and mobile services is not feasible, and seeks comment on different proposals to clear all or part of the band for flexible mobile use. Echoing some of the considerations that are in play in the contentious Ligado license modification proceedings, i.e., in the 1675-1680 MHz band where Ligado hopes to gain access to spectrum currently used for the downlinking of GOES-R weather data by transitioning satellite users to a terrestrial content delivery network, the Draft NPRM asks whether there are alternative technologies and means by which earth station operators can retrieve their information currently made available via 4 GHz Band FSS.

One last item of note: The Draft NPRM has its roots in the record developed in response to the FCC’s 2017 Mid-Band NOI, which sought to obtain information on existing and proposed uses of spectrum between 3.7 GHz and 24 GHz in the search for additional spectrum for flexible use. The Mid-Band NOI sought specific comment on the 4 GHz Band, as well as the “6 GHz Bands,” in particular 5.925- 6.425 GHz and 6.425-7.125 GHz. The Draft NPRM does not extend to the 6 GHz Bands, but foreshadows that the FCC “may address” these and other mid-band spectrum “in subsequent items.” Given the strong interest in the 6 GHz bands by advocates of unlicensed operations, and the FCC’s general goals of making unlicensed spectrum available along with licensed frequencies, those subsequent actions may be coming to an FCC Open Meeting soon.

Background

Last year, in its inaugural Spectrum Frontiers order (The “July 2016 Order”), the Commission designated the 27.5-28.35 GHz (“28 GHz band”), 37-38.6 GHz (“37 GHz band”), and 38.6-40 GHz (“39 GHz band”) bands for flexible mobile and fixed commercial use (i.e., the so-called Upper Microwave Flexible Use Service or “UMFUS”), and designated the 64-71 GHz band for unlicensed use (to supplement 57-64 GHz which had been designated for unlicensed use a few years earlier). The June 2016 Order also contained a Further Notice of Proposed Rulemaking (“First FNPRM”). Items raised in the First FNPRM, along with several petitions for reconsideration of last year’s action, are the subject of the recent trio of recently released orders.

This latest release included a Second Report and Order, a Memorandum Opinion and Order (“Memorandum Order”), and a Second Further Notice of Proposed Rulemaking (“Second FNPRM”), and the Commission also resolved a number of issues on reconsideration of the July 2016 Order in the Spectrum Frontiers docket in an Order on Reconsideration. This latest Spectrum Frontiers item also addressed a host of ancillary sharing, licensing, and technical issues in several different mmW bands. Parts of First Further Notice remain unresolved.

More Spectrum for UMFUS

While the FCC has yet to auction any of the UMFUS spectrum designated in 2016 (outside of the incumbent fixed licenses in the 28 and 39 GHz bands converted to UMFUS), it has now adopted an additional 1700 megahertz of mmW spectrum for licensed flexible commercial wireless fixed and mobile use in the 24.25-24.45, 24.75-25.25, and 47.2-48.2 GHz bands (the first two, the “24 GHz” bands, collectively, and the third, the “47 GHz” band, respectively). As a result, 24.25-24.45 GHz is now allocated for non-Federal fixed and mobile services on a co-primary basis, and 24.75-25.25 GHz for non-Federal fixed, mobile, and fixed-satellite (“FSS”) services on a co-primary basis. In the 24.25-24.45 GHz band, the Commission notes that international studies are being conducted to determine limits that might be needed to protect passive services in the nearby 23.6-24.0 GHz band; the Commission’s technical rules in the 24.25-24.45 GHz band for UMFUS are subject to potential change depending on the outcome of those studies. As with the 28 and 39 GHz bands, the Commission grandfathered existing fixed service licenses in the 24.25-24.45 and 24.75-25.25 GHz band, paving the way for those licenses to be converted to the UMFUS without the need for the licensees to compete at auction for geographic licensing on a Partial Economic Area (“PEA”) basis.

The 47 GHz band has existing allocations in the fixed and mobile services with no Federal allocations. The Commission found it well-suited for UMFUS operations licensed through auctions on a PEA geographic license area basis. The FCC also added the 47 GHz band to Section 25.136(d) of the rules, which allows sharing between terrestrial operations and FSS earth stations in uplink bands by permitting a limited number (three in each county, up to a maximum of fifteen in each PEA) of FSS earth station location deployments without having to protect UMFUS stations in a manner similar to the 28 GHz band, a subject area that was the subject of reconsideration of the July 2016 Order. Having adopted such rules, the Commission underscored its ongoing encouragement to both the mobile and the satellite industries to continue working cooperatively on coexistence in shared mmW bands.

Seeing insufficient reason to act in a measured pace, the FCC rejected a proposal that it hold off allocating more mmW spectrum for flexible fixed and mobile use until after more development occurs in existing UMFUS spectrum created in the July 2016 Order. In light of the demand for mobile and mmW spectrum, the agency explained, there is no reason for artificial delay of new allocations. The Commission also rejected calls to consider using a Spectrum Access System in the 24 and 47 GHz bands to make spectrum available to users dynamically á la the unproven system still being implemented in the 3.5 GHz band for the Citizens Broadband Radio Service (“CBRS”) in a three-tiered sharing scheme adopted in 2015. The FCC also declined to adopt Microsoft’s proposal to authorize unlicensed use in the 24 GHz band, noting that with the fourteen gigahertz recently made available for unlicensed use in the 57-71 GHz band, the case for more unlicensed mmW spectrum was unconvincing, a conclusion that rippled throughout the recently adopted orders.

Further, in what may be a temporary setback for satellite proponents, the Commission declined to modify changes to the rules for FSS earth station siting in the 24 GHz band, but seeks comment on the issue in the Second FNPRM as part of a proposal to allow wider FSS use of the band for earth stations. This means that, for now, the 24.75-25.25 GHz band will only be available for individually-licensed FSS earth stations that meet specific requirements applicable to earth stations in other bands shared with UMFUS (e.g., limitations on population covered, number of earth station locations in a PEA, and a prohibition on earth stations in places where they would preclude terrestrial service to people or equipment that are in transit or are present at mass gatherings).

mmW Band Performance Metrics (Buildout-Based v. Usage-Based)

In its recent Spectrum Frontiers orders and Second FNPRM, the Commission continued to struggle with what are the appropriate performance metrics in the mmW bands to best promote spectrum utilization and preclude warehousing, particularly in anticipation that the bands may be used for a variety of diverse applications, not easily fitting into a one-size-fits-all approach. In the 28 and 39 GHz bands, the Commission adopted link-and-population based network buildout requirements in the July 2016 Order. While the Commission declined to adopt usage-based metrics at this time out of concerns that it would be “premature to predict the uses of innovative, IoT-type services with sufficient specificity to calculate a meaningful usage-based metric,” the FCC also noted that a putative licensee providing IoT-type services involving a network of smart devices and sensors could purport to fulfill the buildout performance metric “for an entire multi-county license area (in 39 GHz) with a deployment spanning a single building, by counting each connection between the sensors as a fixed point-to-point link.” For this reason, the Commission refined the definition of a “fixed point-to-point link” based on power levels (transmitter powers exceeding +43 dBm) to prevent this single-building outcome by distinguishing “traditional” links from most sensor and device connections in IoT-based networks.

As the Second Report and Order explains, licensees using non-qualifying low-power connections will need to “rely on another part of their network to demonstrate buildout (e.g., mobile area coverage or higher-power fixed backhaul links)” or, barring that, convince the Commission in the Second FNPRM phase of the Spectrum Frontiers proceeding to convince the agency to include a more suitable performance metric alternative for “non-traditional” deployments of UMFUS spectrum.

Mobile Spectrum Aggregation Policies in the mmW Bands

While the Commission in its June 2016 Order adopted a 1250 megahertz aggregate spectrum limit for UMFUS licensees in any given location for spectrum in the 28, 37, and 39 GHz bands in combination, the Commission, taking a more market-based approach than its predecessor rejected requests by T-Mobile and other wireless carriers that it also adopt a generally applicable pre-auction spectrum holdings limit to apply in the 24 and 47 GHz bands. Rather than adopt a pre-auction limit for the new bands, the Commission noted that it would respond to specific competitive concerns attributable to spectrum holdings concentrations on a case-by-case basis if they arose, underscoring its desire to not inhibit licensee flexibility to participate fully in the auctions. The Second Report and Order reflects the Commission’s confidence that, because the spectrum in the 24 and 47 GHz bands would be available in a number of frequency block sizes, the results of the eventual auctions will be less likely to concentrate spectrum in a small number of winners.

While the Commission declined to adopt a pre-auction limit for the 24 and 47 GHz bands, it did resolve to include these two new bands as part of the previously-adopted mmW spectrum threshold (in the 28, 37, and 39 GHz bands) for reviewing proposed secondary market transactions. Specifically, the Commission adopted a secondary market mmW spectrum threshold of 1850 megahertz that will be used to identify those markets that may warrant further competitive analysis in anticipation of secondary market transactions involving licenses in one or more of the five UMFUS bands.

Opportunity for Unlicensed Aeronautical Operations in the 60 GHz Band

The Second Report and Order amended the Commission’s rules, subject to certain limits, to allow unlicensed operation aboard aircraft during flight in the 57-64 and 64-71 GHz bands (collectively, the “60 GHz band”). Until now, in Part 15 of the FCC’s Rules, there has been an across-the-board ban on unlicensed airborne and space operations in the 60 GHz band. The move for the first time to permit certain airborne operations was made to accommodate, but is not necessarily limited to, two applications -- broadband internet/entertainment access in closed networks on-board aircraft, and certain wireless avionics intra-communications (“WAIC”) applications, the latter of which connect two or more stations on a single aircraft and constitute exclusive closed on board networks required for the operation of the aircraft. Finding that use of the 60 GHz spectrum on board aircraft would not cause harmful interference to authorized services, including passive services used for weather forecasting data collection, the Commission determined to permit unlicensed use within the body/fuselage of most aircraft. However, the Commission specifically excluded unlicensed operation on aerostats, UAVs/UASs (unmanned aeronautical vehicles/unmanned aircraft systems, e.g., drones), toy and model aircraft, and other aircraft where there would not be natural shielding (i.e., from an encompassing fuselage). The FCC also explained that operation of 60 GHz transmitters, i.e., in WAIC applications, on the outside of an aircraft body/fuselage while airborne would continue to be banned. Addressing certain operational and technical details, the Commission declined to impose new strict out-of-band emissions (“OOBE”) limits at harmonic frequencies on the newly permitted airborne operations and found that the existing spurious emission limits in Section 15.255(c) of the Rules would be sufficient to protect passive services in the 60 GHz band.

Rejection of Proposals to Extend the E-Band Uses to Mobile and Unlicensed Operations

The FCC, in the Memorandum Order, preserved the existing fixed-link licensing and registration regime in the 71-76 and 81-86 GHz bands (collectively, the “E-Band”) and declined adopting flexible mobile use rules in the lower E-Band or allowing indoor-only unlicensed operations in either of these two bands. In the latter case, given the perceived risks of interference to existing fixed uses, the Commission opined that additional studies are warranted before considering indoor unlicensed use in the bands. As further justification, the November 2017 Orders concluded that the availability of fourteen continuous gigahertz immediately below the 71 GHz band reduces any urgency for unlicensed authorization in the E Band. The FCC also observed that no equipment in the nearby 95 GHz band had been authorized as of June 2017, suggesting it would be premature to extend the rules for the “yet-to-be successful [unlicensed] service” to the E-band, especially when it already supports “a thriving millimeter wave [fixed] service.”

Noting the suitability of fixed operations in the E-Band to support 5G and other uses, the Commission noted the existence of several rule modification proposals pending in its Wireless Backhaul proceeding (WT Docket No. 10-153). These include possible adjustments to relax the antenna standards in some cases, allow +/- 45 degree polarization, and establish a channel plan, among other possible modifications to the private operational fixed microwave rules (Part 101). The Memorandum Order also observed that several parties have suggested future high altitude uses for these bands which the Commission proposes to consider in the Wireless Backhaul proceeding.

Confirming Core Satellite Bands above 40 GHz

The Commission confirmed 40-42 and 48.2-50.2 GHz as core satellite bands, declining to propose or authorize, respectively, fixed and mobile use in the bands. The Commission acted in light of the perceived importance to satellite operators having adequate spectrum to freely deploy uplink user terminals (in the 48.2-50.2 GHz range nationwide) without having to coordinate with terrestrial users.

37/39 GHz Band Satellite Matters

The Memorandum Order resolved a few issues raised in the First FNPRM regarding satellite operations in the 37/39 GHz bands. For example, the Commission declined to find that space stations can operate at a higher power flux density (“PFD”) without risking frustrating UMFUS licensee flexibility to provide a wide variety of fixed and mobile technologies. Noting that existing PFD limits were designed to protect fixed (not mobile) systems, the Commission emphasized that its rules adopted in the July 2016 Order are designed to promote other terrestrial uses as well, such as diverse IoT applications. The FCC also declined to adopt equivalent PFD limits as an alternative (or in addition) because any such limit set now “based on a 3GPP-suggested antenna pattern” could endanger development of “antenna reception technology for known applications or for applications that have not even been conceived.”

Further, the Commission abstained from permitting satellite earth station facilities in the 37/39 GHz bands (space-to-Earth) to be deployed ubiquitously or to serve individual consumers because of concerns these actions would have “the potential to result in a negative customer experience for satellite broadband consumers.” As one concern, the FCC reasoned that the buildout of terrestrial systems could require FSS operators to relinquish their use of channels below 40 GHz to serve user equipment, causing customers to “experience a reduction in service quality.” Rather, the agency concluded that, under the other rules it has adopted, the “FSS can use the 37.5-40 GHz band for a limited number of individually licensed earth stations.”

Non-Federal Use-or-Share UMFUS Requirements

In the First FNPRM, the FCC sought comment on potential opportunistic use of portions of an UMFUS license area when not in actual use by the licensee (“Use-or-Share”) and whether any Use-or-Share regime should be in addition to traditional performance requirements, or a replacement. The Commission declined to adopt Use-or-Share for multiple reasons, but added that the decision “does not limit or prejudge any actions we may take concerning sharing mechanisms with Federal users in shared bands” such as the 37.0-37.6 GHz band where a Federal/Non-Federal sharing regime is being developed.

Digital Station Identifiers

The Commission declined to require mmW band licensees or operators to transmit digital identifiers due to a lack of record support especially because characteristics of the high frequency bands at issue in the July 2016 Order and recently adopted Orders make interference less likely. At the same time, the FCC acknowledged its important ongoing role to identify and locate devices that cause harmful interference.

Miscellaneous Technical Issues

The Memorandum Order tackled several technical issues raised in the First FNPRM, in many cases choosing not to modify existing regulations. One, the Commission declined to adopt antenna height limits for UMFUS licensees (consistent with other higher frequency bands) to avoid precluding uses that could require higher antenna heights. By allowing licensees the flexibility to determine network configurations and when antenna downtilt may be necessary, the FCC hopes to promote diverse systems, relying on adjacent channel licensee coordination to manage the risks of interference. Similarly, the Commission refused to adopt a graduated framework with corresponding power reductions for UMFUS operations at increasing antenna heights.

Two, the agency found there was no need to revise existing coordination criteria at market boundaries for point-to-point operations in the mmW bands under existing Part 30 and Part 101 rules.

Three, although the FCC acknowledged that power scaling could potentially help limit interference among UMFUS providers and other services using the mmW bands, it maintained current power limit rules for mobile and transportable licensee classes without scaling. Noting that other methods can contribute to limiting interference, e.g., power control, and that UMFUS licensees will act to reduce interference within their own network, the Commission found that the establishment of power scaling factors could have the undesirable result of thwarting new use cases and broad development of next generation devices.

Four, the Commission found no need for minimum bandwidth requirements, expressing concern that such requirements could preclude use of the mmW bands to facilitate data exchange for multitudinous devices with different bandwidth requirements serving diverse user applications.

Affirmation of Risk-Based Interference Assessments

The Commission reiterated its endorsement of risk-based sharing analyses. It chose not to adopt a standard sharing propagation model, opting to retain flexibility when analyzing sharing in the mmW bands depending on the particular operational environment, the technologies deployed, and interference paths. But, as a general matter, the Commission underscored a preference for “models and scenarios that consider a statistical probability of interference based on deployment, propagation, and usage scenarios as opposed to a worse case approach,”.

One related note is that the Commission underscored in the Second Report and Order that, under the rules, harmful interference is defined not to protect against isolated occurrences, but only against interference that “seriously degrades, obstructs, or repeatedly interrupts.” In other words, in managing the spectrum, the Commission will lean toward a risk-based interference analysis rather than a worst-case assessment. Existing and would-be users of the spectrum should keep this in mind as the Commission and the National Telecommunications and Information Administration (“NTIA”) increasingly look to implement spectrum sharing frameworks to meet the growing needs of a variety of industries, researchers, and federal agencies that rely on access to electromagnetic spectrum.

Reconsideration of the July 2016 Order

The Order on Reconsideration addressed the petitions for reconsideration of the July 2016 Order, the majority of which were brought by members of the satellite industry. By and large, the Commission affirmed its earlier actions, although it added some additional authority for earth station siting and removed the previous Commission’s security plan requirements.

• Security Plan Requirements for UMFUS Licensees: In a victory for the commercial mobile industry, the Commission vacated its regulations adopted in July 2016 that had obligated UMFUS licensees to submit security plans and related information to the FCC before commencing operation indicating how confidentiality, integrity, and availability principles are applied in their network security designs. While acknowledging the importance of network security, the Commission believed more flexibility should be explored as a next step without imposing the burden of premature regulation “which could slow the development of innovative 5G services.” As an alternative to regulation, the Commission will seek industry input and voluntary adoption of measures through the Communications Security, Reliability, and Interoperability Council (“CSRIC”) process. In particular, the Commission is looking for CSRIC to identify risks for 5G network reliability and security and develop best practices to mitigate them as a precursor to potential future action, if and as needed.
• Earth Station Siting: On the whole, the Commission denied requests of the satellite industry to expand the options for siting earth stations in the 28, 37, and 39 GHz bands. But it also modified the rules in certain circumstances to expand those opportunities.

· First, the FCC rejected the request to increase the 0.1 percent population limit for earth station locations to 0.2 percent in larger markets. But, in smaller markets, the Commission concluded that maintenance of the 0.1 percent limit could drive earth station siting towards more heavily populated places and centers of commercial activity. As a result the Commission adopted a modified version of a proposal made by SES/O3b to provide additional flexibility in second- and third-tier markets in both the 28 and 37/39 GHz bands based on population size while maintaining the primacy of UMFUS in the bands.

· Second, the Commission denied requests to relax the additional limits on earth station siting along major transport corridors, ports, and areas where there is high demand for terrestrial service using mmW bands, such as major event venues, residential areas, and business centers. At the same time, the FCC clarified the types of roads that earth station siting should avoid: interstate highways, other freeways and expressways, and other principal arterial roadways. The Order on Reconsideration also specified that “major event venues” include “any location where large numbers of people could gather on a regular basis in a setting where they would expect to use wireless service” without adopting a minimum size threshold and underscoring an expectation that UMFUS and satellite licenses will work cooperatively to identify and avoid conflicts at major event venues.

· Third, the July 2016 Order restricted the number of earth station locations that do not have to protect terrestrial services to three per county in the 28 GHz band and three per PEA in the 37/39 GHz bands. The Order on Reconsideration declined to eliminate this limit in the 28 GHz bands as the satellite industry had requested. But in the 37/39 GHz bands, where UMFUS is licensed on a PEA basis and the FSS allocation is space-to-Earth, the Commission reached a different conclusion. Based on new satellite-industry-participant analyses indicating that smaller zones are needed to protect FSS earth stations from UMFUS-sourced interference, the FCC increased the permissible number of earth station locations in the 37/39 GHz band to fifteen per PEA and three per county.

· Fourth, the Commission took the opportunity to clarify that its limits were based on earth station locations, not earth stations per se, allowing additional earth stations as long as they comply with applicable contours and other earth station siting limits in the rules.

• Status of FSS in the 28 GHz Band. The FCC maintained the secondary status of FSS in the 28 GHz band, denying the petition for reconsideration of the Satellite Industry Association (“SIA”)
• Aggregate Interference in the 28 GHz Band. In response to the renewed request of satellite system operators to have the Commission on reconsideration set an overall limit on aggregate interference to satellite receivers in the 28 GHz band, the FCC declined to act. The principal reason for doing so cited in the Order on Reconsideration was that limits would be “inconsistent with [the FCC’s] goal of providing UMFUS licensees with a flexible rules framework that could allow them to provide a variety of services” by avoiding rules that “would risk preventing licensees from developing new services to meet market demand.” The Commission also reiterated that the rules adopted in the July 2016 Order provide more protection to other countries’ satellites than is required by ITU rules.
• Base Station Power Limits. The Commission declined Boeing’s petition for reconsideration seeking tighter power limits applicable to UMFUS base station transmitters in large part because the FCC believes UMFUS facilities will have incentives to use the minimum power necessary and out of concern that tighter limits would frustrate the deployment of a wide variety of mmW technologies.
• Base Station Location Disclosure: The Order on Reconsideration declined the request of EchoStar/Inmarsat and SES/O3b to mandate a database of UMFUS facilities to facilitate FSS/UMFUS coordination because of anticipated burdens on UMFUS licensees were they required to maintain and update information on each deployment. The Commission observed that the rules require UMFUS licensees to specify technical details relevant to any objection to proposed earth station locations.
• Mobile Use of the 64-71 GHz Band: The Order on Reconsideration affirmed the 2016 decision to authorize unlicensed operations across the entire 64-71 GHz band and declined to adopt a policy of “gigahertz parity” between licensed mobile and unlicensed operations. The FCC rejected calls to make part of the 64-71 GHz band available for licensed mobile operations.
• Mobile In-Band Spectrum Holding Limits: The FCC denied CCA’s request for reconsideration to adopt in-band spectrum holdings limits within the 28 and 37/39 GHz bands.
• License Area Sizes in the 28 and 37/39 GHz Bands: Rejecting petitions for reconsideration, the Commission maintained the county-sized licensing areas in the 28 GHz band and the PEA-sized license areas in the 37/39 GHz bands.

• Performance Metrics for Incumbent UMFUS Licensees: In the July 2016 Order, the Commission ruled that existing licensees in the 28 GHz and 39 GHz bands that complied with performance requirements in the prior license term (under Part 101 of the Rules) were required to meet the new performance requirements applicable to UMFUS licensees under Part 30 by June 1, 2024. The Order on Reconsideration declined to grant additional relief to incumbent licensees for lack of new evidence and arguments and in part because the Commission found that its estimate that mmW equipment would become available in 2020 “may have been pessimistic.” Rather, based on recent developments, the FCC believes licensees will have sufficient time to meet the performance requirements by 2024.
• Splitting of the 28 GHz Band Licenses: The FCC retained the split of the A1 28 GHz band into two 425 megahertz licenses adopted in the July 2016 Order, rejecting Nextlink’s petition for reconsideration on this point. The Commission hoped smaller license blocks would “preserve competition.”

The Commission used the occasion to continue to dig deeper into the mmW regulatory framework by issuing a Second FNPRM. The Commission seeks comment on a number of issues to build on what it did in the July 2016 Order and the recently adopted trio of orders. Some of the principal areas where the Commission requests additional public input are as follows:

• FSS use of the 24 GHz Band: The FCC proposes to license FSS earth stations in 24.75-25.25 GHz band on a co-primary basis with UMFUS. Specifically the sub-band would become available for individually-licensed FSS earth stations meeting the same requirements applicable in other mmW bands shared with UMFUS, namely the limitations on population covered, restrictions on the number of earth station locations in a PEA, and a prohibition on locating earth stations that preclude UMFUS to people or equipment in transit or present at large events. The proposed changes would make this sub-band available for general FSS uplink operations without being limited to feeder links for 17/24 GHz broadcast satellite service (“BSS”) space stations. BSS feeder links under the proposal would not enjoy priority over other uses of FSS for earth stations in the U.S. or preclude other FSS stations from claiming protection from the BSS feeder link in the United States. The Second FNPRM also inquires about a number of other technical conforming changes to the rules concerning FSS and BSS in the sub-band.
• Aggregate Interference from UMFUS to FSS: The Second FNPRM recognizes that some parties may be concerned about potential for aggregate interference to space station receivers from UMFUS operations and asks whether any action is needed to address that potential.
• UMFUS Performance Requirements: Current metrics applicable to UMFUS are network-coverage oriented and predicated on limited options: fixed links, population-based area coverage, or some combination thereof. Acknowledging the difficulty of crafting an IoT-specific metric, as discussed above, the FCC seeks input “on whether to adopt a more traditional or other metric” to accommodate IoT-type applications in the mmW bands and encourage “innovative services.” The Second FNPRM suggests that a metric based on geographic coverage/presence could capture uses that offer meaningful service even if the deployment does not correspond to residential populations. The FCC specifically seeks comment on a metric based on “geographic area coverage of 25% of the license area” and an alternative metric based on “presence in 25% of subset units of the license area, such as census tracts, counties, or some other area.” The Commission selected the 25% level for consideration and comment in both cases “as an attempt to maintain parity between the requirements of this metric and the requirements of [the FCC’s] previously-established metric based on population coverage.” The Second FNPRM welcomes comment on the 25% level and invites views on other metrics that parties think might be more appropriate without raising artificial regulatory barriers, underscoring that any metric adopted to facilitate IoT deployment would be available to any UMFUS licensee regardless of the services provided. In other words, all metrics that would be available for use in the mmW bands would be non-service specific, so presumably the Commission would take into account whether any newly adopted metrics would lower the bar for services most likely to be deployed by licensee winners -- a difficult balancing act indeed.
• Aggregate Mobile Spectrum Holdings: The Commission proposes to eliminate the pre-auction limit of 1250 megahertz that July 2016 Order adopted for the 28, 37 and 39 GHz bands given that technological development in the mmW bands is “nascent” and more, “technically similar” mmW spectrum is being made available in the Spectrum Frontiers proceeding (i.e., in the 24 and 47 GHz bands). Commenters advocating retention of the pre-auction limit are asked to discuss “the likely effects of having two different policy frameworks applicable to mmW spectrum acquired at auction.” (As noted earlier, there is no pre-auction limit for the newly adopted 24 and 47 GHz UMFUS bands.) The Second FNPRM also inquires whether, without pre-auction limits, it is necessary to conduct a post-auction case-by-case review of applications for initial mmW licenses. Proponents are asked to discuss how and under what standards such a review should be conducted, as well as potential remedies if there are competitive concerns.
• Operability in the 24 GHz Band: In the July 2016 Order, the Commission required equipment operating in any part of the 28 GHz band to be capable of operating throughout the band. Similarly, for the 37 and 39 GHz bands taken as a whole. In the Second FNPRM, the Commission proposes to require equipment capable of operating anywhere within the 24 GHz band must be capable of operating in both of the UMFUS band segments.
• Additional mmW Bands for Flexible Terrestrial Use: The Second FNPRM observed that bands previously identified in the proceeding but not yet acted upon are still under consideration by the Commission, such as the 31.8-33.4, 42.0-42.5, and 50.4-52.6 GHz bands. The Commission invited additional comment on those bands and also on any “additional millimeter wave bands that the Commission should consider for flexible terrestrial wireless use, which have not been raised in the proceeding thus far.” Note that this request was made as part of a notice of proposed rulemaking and not part of a notice of inquiry, so presumably the Commission could, following the comment cycle, move straight to rules (at least as a theoretical matter), unlike the recent Mid-Band Spectrum Notice of Inquiry proceeding, where the bands under discussion will first require a later notice of proposed rulemaking before rules could be adopted. This request for comment is also noteworthy as it was not part of the public draft of the November 2017 Orders issued before the Commission’s November 16 Open Meeting.

On Tuesday, the FCC stepped up its enforcement efforts against unlicensed wireless broadband devices causing interference by releasing a Notice of Apparent Liability (“NAL”) against Florida’s Towerstream Corporation in the amount of $202,000 for unauthorized operation of, and interference caused by, Wi-Fi and rooftop tower devices in New York City and Miami. The devices operated in or near the 5 GHz spectrum set aside for operation of Unlicensed National Information Infrastructure (“U-NII”) transmission systems on a non-interference basis that many providers of broadband internet access, including mobile operators and cable service providers, among others, reply upon to give customers Internet access over extended areas. The Bureau concluded that Towerstream operated six U-NII devices without authorization and in a manner that caused interference to the Federal Aviation Administration’s (“FAA’s) Terminal Doppler Weather Radar (“TDWR”) systems that were within line-of-sight, and that another U-NII device operated on frequencies where such devices are not permitted. The Commission concluded that Towerstream operated the devices without authorization because Towerstream knew that “operations within 30 MHz of the TDWR operating frequencies within line-of-sight of the airports could cause harmful interference to those TDWR systems” and “[b]ecause Towerstream caused harmful interference to TDWR systems after being directed to cease operations” by Bureau staff.

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This matter represents a new chapter in the FCC’s efforts to manage through enforcement activity the shared use of the 5.6-5.65 GHz band by the primary TDWR systems and unlicensed broadband devices. As we reported earlier in our blog, the Commission has taken a variety of actions, including both advisories and enforcement proceedings against AT&T, among others, to protect the federal systems. TDWR systems are used at forty-five major U.S. airports to assist air traffic controllers in detecting low-altitude wind shear that poses potential risks to aircraft. In the FCC earlier actions involving U-NII devices at 5 GHz, the principal focus was the failure of equipment used by unlicensed broadband providers to comply with the requirement that the devices possess and have activated Dynamic Frequency Selection (“DFS”) radar detection functionality. In the Towerstream situation, as reported in the NAL, the infractions did not implicate DFS functionality. Instead, Towerstream, after being the subject of Enforcement Bureau inquiries and warnings in 2009 when Towerstream devices in three cities were found to cause interference to TDWR systems and after agreeing with the Bureau to avoid “frequencies around TDWR frequencies,” was found by Enforcement Bureau field personnel at various times between August and October 2012 to operate six U-NII devices on frequencies near those used by the TDWR in such a way that they caused actual interference to the federal safety operations. A seventh broadband transceiver was found to operate without authorization at 4.965 GHz, a channel not available for U-NII devices. The NAL underscores that the Commission’s authorization to operate “unlicensed” devices under its rules “does not extend to devices that are not operated in accordance with Part 15 regulations, and that such operations must be licensed (or otherwise be exempted from licensing despite such non-compliance).”

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Based on three factors, the Commission concluded that the proposed forfeiture should be assessed on a per device basis and almost doubled from a base amount of $112,000 for the thirteen violations (seven instances of operating without authorization and six instances of actual interference) to $202,000. By inflating the penalties, with the exception of the device operating at 4.965 GHz, to the maximum per diem forfeiture per violation, the Commission cited the public safety impact of the interference to TDWR operations, Towerstream’s prior history of causing interference to such operations, and “the seriousness of the violations.” Towerstream may well challenge the NAL and possibly succeed in reducing the forfeiture, but this matter both underscores the Commission’s level of penalizing those that interfere with TDWR systems and the importance of parties’ subject to adhere to their commitments to follow a compliance plan, even one voluntarily assumed, especially if subject to prior enforcement action. (There was no reference in the NAL to a consent decree as a result of the earlier enforcement activity.) As the Commission considers additional spectrum bands in which to permit unlicensed operations to support greater wireless broadband access, cases like Towerstream’s bear close watching by providers that seek to develop and implement best practices. There is no doubt that incumbent operators being asked to share with unlicensed operators are giving situations like that presented in the NAL a good look as well.