CommLaw Monitor News and analysis from Kelley Drye’s communications practice group Wed, 03 Jul 2024 07:37:35 -0400 60 hourly 1 FCC Tees Up Major Reconfiguration of 900 MHz Part 90 Spectrum Thu, 07 Mar 2019 18:19:19 -0500 Following on its 2017 Notice of Inquiry and proposals by several entities going back at least five years, the FCC is poised to consider establishment of a wireless broadband service in the 900 MHz band (896-901/935-940 MHz), a major change from its historical use for narrowband private land mobile radio. At its March 15 Open Meeting, the FCC will consider a draft Notice of Proposed Rulemaking (“NPRM”) that would propose to allot 60% of the spectrum for wireless broadband licensees’ use, subject to commercial mobile rules, while preserving the remainder for continued narrowband operations . The comments on the NPRM, assuming it is adopted, will follow publication in the Federal Register, but the length of the comment periods is not set out in the draft.

Currently, the entire 900 MHz band is designated for narrowband private land mobile radio communications and it has been primarily used for two-way dispatch radio communications by land transportation, utility, manufacturing, and petrochemical companies. The NPRM proposes to reconfigure the band to serve the commercial wireless broadband needs of similar business and industrial entities. The FCC’s goal with this item is to “create opportunities for robust broadband networks that fully support critical communication systems and that ensure the low latency and ultra-high reliability required by electric and other utilities” and other business and industrial users.

The main proposal would split the band, with one segment supporting the existing narrowband operations while the other segment would be designated for broadband solutions, conceptually proposing a realignment first championed by Enterprise Wireless Alliance (“EWA”) and pdvWireless, Inc. (“PDV”) in 2014. The broadband segment would use a paired 3/3 megahertz arrangement while two paired segments above and below the broadband designation, 1.5 and .5 megahertz, respectively, would be retained for conventional narrowband operations. Specifically, the draft NPRM proposes to designate 897.5-900.5 MHz/936.5-939.5 MHz as the broadband segment while leaving the two remaining segments— 896-897.5/935-936.5 MHz and 900.5-901/939.5-940 MHz— for Part 90 narrowband. The NPRM also proposes to tweak the co-primary Mobile allocation in the 900 MHz band by excepting Aeronautical Mobile Service to be more consistent with allocations in adjacent bands in the international frequency allocation table.

Rather than simply modify the current Part 90 Rules to create the framework for the proposed broadband service, the draft NPRM suggests the Commission may designate the 900 MHz broadband service as a Miscellaneous Wireless Communications Service governed by Part 27 of the Commission’s rules, which govern a variety of flexible carrier-type services, including the Wireless Communications Service, or WCS, in the S-Band and Advanced Wireless Services, or AWS, in the 1.7 and 2.1 GHz Bands. Conventional narrowband land mobile systems that remain in the band would continue to be governed by Part 90.

The draft NPRM recognizes that there may be alternatives to the realignment described above and seeks comment on such alternatives.

One of the most interesting aspects to the draft NPRM is its discussion of how the transition to a realigned band would take place and how broadband licenses would be issued. Due to the significant encumbrances as a result of existing narrowband licenses throughout the band, the draft NPRM would put forth for comment a transition plan whereby existing licensees would coordinate and mutually agree on a plan for relocating site-based systems and transitioning the band for broadband use. Acknowledging that this approach may not work in all geographic markets (or at all), the draft NPRM also would seek input on other transition methods that could be used effectively along with its voluntary exchange proposal. These include an overlay license auction or some form of incentive auction.

Since September 13, 2018, the FCC has not accepted applications for new or expanded 900 MHz operations to maintain a stable spectral landscape while the Commission determined how to proceed with respect to that spectrum. That suspension will ostensibly remain in place while the rulemaking plays out, albeit the Utilities Technology Council filed a petition for reconsideration or clarification of the decision to suspend such applications which remains pending.

UPDATE: On March 13, 2019, in advance of its open meeting, the FCC adopted the NPRM with no major revisions to the draft. However, the Commission expanded its discussion on several key items including the possibility of a market-driven mechanism for clearing the total of six megahertz for flexible use broadband. The NPRM was released on March 14, 2019. Comments and Reply Comments will be due 60 and 90 days, respectively, after Federal Register publication.

FCC Plans to Ease Access to Rights-of-Way for Wireless Deployments Thu, 13 Sep 2018 14:21:10 -0400 The FCC plans to take major action to speed the deployment of small wireless broadband facilities to support 5G technologies at its next meeting, scheduled for September 26, 2018. The FCC’s draft Declaratory Ruling and Order may significantly tilt the balance of power in favor of wireless broadband providers over state and local governments concerning access to rights-of-way and deployment costs. The draft item highlights the FCC’s recent emphasis on spurring the creation of next-generation wireless networks and follows recent moves to exempt certain deployments from environmental/historic preservation reviews and prohibit moratoria on infrastructure projects. Under its latest proposal, the FCC would: (1) restrict the types of fees assessed on deployments; (2) limit the aesthetic requirements imposed on deployments; and (3) establish “shot clocks” on responding to deployment requests. The action is likely to result in legal challenges from state and/or local governments. You will find more about the FCC’s anticipated reforms as well as potential Congressional action on this issue after the jump.

Restricting Deployment Fees

The Communications Act prohibits state and local governments from adopting requirements that effectively prohibit the provision of wireless services. The FCC’s draft item finds that state and local rights-of-way fees and other charges associated with infrastructure deployment can effectively prohibit wireless services. As a result, the FCC plans to conclude that such fees are prohibited unless they are nondiscriminatory and represent a reasonable approximation of the state or local governments’ actual costs related to the deployment, such as fees designed to recover the costs of permit reviews. The FCC also anticipates providing examples of fees that it will deem reasonable in advance. However, the draft item recognizes that the actual costs incurred by state and local governments may vary significantly based on the deployment’s location and scope, and notes that particular fees will be judged for reasonableness on a case-by-case basis.

Limiting Aesthetic Obligations

The FCC indicates that many wireless broadband providers claimed that state and local governments impose burdensome design requirements and other aesthetic obligations on new facilities. In particular, providers complained that they are often subject to vague or subjective criteria that are not spelled out in any official code or policy. The FCC’s draft item asserts that aesthetic requirements for wireless broadband deployments are not necessarily unlawful, so long as the obligations are: (1) reasonable; (2) no more burdensome than those applied to other deployments; and (3) published in advance. The FCC cautions that one-size-fits-all mandates may not pass muster, such as rules requiring underground facilities deployments in all cases.

Establishing Shot Clocks

The FCC’s draft item would impose new shot clocks on small wireless broadband facilities deployments. State and local governments would have 60 days to process an application for collocation of small facilities on preexisting structures and 90 days to process an application involving new construction. These shot clocks mirror the deadlines recently recommended by the FCC’s Broadband Deployment Advisory Committee in its model code for municipalities. If a state or local government fails to abide by the shot clocks, such failure will be considered a prohibition of service and a violation of federal law, enabling affected providers to seek expedited relief in court.

Legislative Action?

The FCC is not the only level of government pushing for faster wireless broadband deployment. Congress has teed up two significant pieces of legislation aimed at facilitating wireless network rollouts. First, the STREAMLINE Small Cell Deployment Act proposes to expedite wireless infrastructure deployments by implementing a “reasonable process and timeframe guidelines” for state and local governments’ consideration of deployment requests and banning onerous conditions and fees. Second, the SPEED Act similarly would streamline federal agencies’ permitting processes for wireless infrastructure deployments. Both pieces of legislation enjoy bipartisan support and Congressional leaders indicate that they plan to move the bills to a vote in some form this year. In addition, Derek Khlopin, Senior Advisor to the Assistant Secretary of the National Telecommunications and Information Administration discussed coordinating with the FCC on access for communications deployments on federal lands at the Mobile World Congress Americas conference yesterday.

With government and commercial wireless stakeholders already heavily involved in debates over infrastructure policy, the FCC’s draft item is sure to generate significant input about the current costs of wireless network development and government control over rights-of-way and community planning. It remains to be seen whether the FCC or Congress will make the next move to reform deployments, but reform is coming and readers involved or impacted by the wireless industry should keep a close watch on these pending agency and legislative actions.

FCC Sets Stage for $4.5 Billion Auction by Resolving Mobility Fund Phase II Challenges Tue, 27 Feb 2018 17:27:22 -0500 The Federal Communications Commission (“FCC”) took a major step forward on closing the “digital divide” in mobile broadband at its February meeting by unanimously adopting an Order resolving the remaining challenges to the Mobility Fund Phase II (“MF-II”) auction. The order eases the letter of credit requirements and clarifies the collocation obligations for funding recipients, but generally preserves the MF-II auction budget, disbursement, and performance rules announced last year. After clearing away these challenges, the FCC will focus on identifying the areas eligible for funding and conducting the auction later this year.

The Mobility Fund provides financial support to wireless service providers to maintain and extend mobile broadband and voice services in unserved and underserved areas. The FCC plans to give out over $4.5 billion in support through the MF-II auction to expand 4G LTE coverage in places lacking such service. The Order addresses four key issues:

1) Relaxing Letter of Credit Requirement: The FCC requires a MF-II auction winner to obtain a letter of credit covering the support received, which allows the FCC to recover funding in the event the service provider fails to meet its performance milestones. Recognizing the significant costs of obtaining a letter of credit, the FCC will allow a service provider to significantly reduce the letter of credit’s value (and simultaneously reduce the letter of credit’s cost) once the service provider meets its 80 percent service milestone. The FCC also stated that a service provider can cancel the letter of credit once it meets its final performance milestone. With these changes, the letter of credit obligations for the MF-II auction match the letter of credit obligations imposed in the Connect America Fund Phase II (“CAF-II”) auction, which covers fixed broadband deployment.

2) Clarifying Collocation Obligation: The FCC initially indicated that funding recipients would be required to provide reasonable collocation by other service providers on “all” towers that the recipients owned or managed. A number of service providers asked the FCC to reconsider this requirement, pointing out that a similar collocation requirement applicable to earlier auction winners only covered “newly constructed” towers. The FCC resolved this discrepancy by clarifying that the collocation requirement only applies to newly constructed towers in the areas where the service provider receives MF-II support.

3) Maintaining Budget and Disbursement Schedule: The FCC refused to increase the budget for the MF-II auction in response to wireless industry claims that it did not provide enough money to achieve full 4G LTE coverage in all eligible areas. The FCC affirmed its budget calculation methodology and stated that it would re-evaluate if more funding is necessary in the future. The FCC denied requests to base the budget on wireless carriers’ projected costs, expressing concern that such a system would encourage inflated claims and waste. The FCC also affirmed its monthly disbursement schedule after carriers asked it to allow larger support payments early in the network construction process. While the FCC recognized that carriers would likely incur most costs early in the network construction process, it found that trying to match each carriers’ costs during the deployment process would strain the MF-II budget. The FCC also noted that CAF-II will operate on a monthly disbursement schedule.

4) Preserving Performance Requirements: The FCC rejected calls to lower the minimum level of service required from MF-II auction winners from the current 10/1Mbps median data speed and 100 ms latency benchmarks. The FCC found such benchmarks necessary to ensure that rural offerings keep pace with their urban counterparts and do not become a “second-class” service.

The FCC also declined to extend bidding preferences to small businesses in the MF-II auction, which Commissioner Clyburn supported, or adopt new limitations on winning carriers entering into equipment exclusivity arrangements. In addition, the FCC retained the role played by the Universal Service Administrative Company in verifying the data wireless providers submit to demonstrate compliance with their MF-II auction buildout requirements.

With the last MF-II auction reconsideration petitions resolved, the FCC can move on to finalizing the set of areas eligible for funding. The FCC recently issued an initial map of areas presumptively eligible for funding. The FCC’s eligibility determinations will be subject to a challenge process, which is scheduled to begin on March 29, 2018. However, it remains unclear when the challenge process will conclude and the FCC will announce the final list of areas eligible for support through the MF-II auction. Whenever it occurs, the MF-II auction will have transformative impacts on rural wireless broadband deployment, so stakeholders should assess whether funding opportunities exist in their service areas and consider participating in the auction process.

New FCC Rulemaking Explores Flexible Wireless Operations Above 24 GHz Thu, 22 Oct 2015 23:53:23 -0400 Earlier today, October 22, the Federal Communications Commission (FCC) adopted a Notice of Proposed Rulemaking (NPRM) to explore new regulatory frameworks, including flexible licensing schemes, for mobile and fixed wireless broadband in several frequency bands above 24 GHz. The NPRM seeks comment on proposed rules that would allow these frequencies to support new technology developments, such as 5G, small cell, and wi-fi applications.

As we reported in a blog post earlier this month, the NPRM is the result of a 2014 Notice of Inquiry (NOI) which generated considerable input from virtually every segment of the communications industry on issues and possibilities surrounding wireless operations in the millimeter wave bands. The NPRM targets four specific spectrum bands for potential wireless broadband operations: at 28 GHz, 37 GHz, 39 GHz and 64-71 GHz. The Commission envisions these bands may be licensed through a variety of methods– geographic wide-area and local licenses, unlicensed operations subject to Part 15 of the FCC’s rules, and a hybrid licensing mechanism that can accommodate both private and traditional commercial communications operations, including cable and broadcast.

In adopting this NPRM, the FCC reiterated its intention to remain “technology neutral” when writing rules for millimeter wave bands. The Commission describes the NPRM as soliciting “extensive comment” on service, licensing, and technical rules for a “variety of platforms and uses” coexisting and expanding through market-based mechanisms.

Despite these optimistic assessments by the Commission of this action, Commissioners Pai and O’Rielly issued separate statements with some criticisms of the action. The Republican Commissioners argued that the NPRM did not go far enough and that more of the spectrum bands contemplated in the NOI should have been included in the item. However, the NPRM invites commenters to identify additional millimeter wave bands that might be made available through such flexible mechanisms. While the Commission moves forward to examine these millimeter wave bands, its efforts will proceed simultaneously with planning toward further consideration of these frequencies by the global community in preparation for the next ITU World Radiocommunication Conference (WRC-19). The FCC’s new proceeding presents an opportunity for the United States to take the lead in these preparations.

The FCC has not released the text of the NPRM but is expected to in the near term. Manufacturers, service providers, and potential users of millimeter-wave technologies should watch for the release and Federal Register publication to determine the comment deadlines for participating in the proceeding.