CommLaw Monitor News and analysis from Kelley Drye’s communications practice group Wed, 03 Jul 2024 03:45:25 -0400 60 hourly 1 Join Kelley Drye and Telecom Council at TC3 Carrier Connections Thu, 28 Oct 2021 14:51:12 -0400 On November 16th, Partner Steve Augustino will host the “Private 5G Networks” roundtable during Telecom Council’s virtual TC3 conference. This discussion will delve into this latest trend in 5G innovation, including the choices of unlicensed or licensed spectrum, MVNOs, privacy, control, and federal concerns about security. In addition to this and other Executive Roundtables, TC3 will feature case studies, executive chats, rapid-fire pitches, and demos with telecom tech scouts, investors, and startups.

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FCC’s March Open Meeting Highlights 3.45 GHz Band Auction Thu, 11 Mar 2021 14:42:47 -0500 The FCC released the agenda for its next Open Meeting, scheduled for March 17, 2021. The March meeting will notably include a Report and Order that would reallocate 100 megahertz of prized mid-band spectrum in the 3.45 GHz band through Auction 110, and propose a band plan for the new 3.45 GHz flexible use wireless service aimed at supporting 5G technologies. The FCC will also consider a Public Notice for Auction 110 that would seek comment on appropriate auction application and bidding procedures. While the FCC is required to start the auction by the end of 2021, the agency expects Auction 110 to begin in October 2021. The 3.45 GHz band items are the product of long-term FCC, NTIA, and DOJ collaboration to open frequencies currently used by federal agencies for shared use by commercial wireless providers. The FCC also teed up a Report and Order that would increase public safety officials’ access to network reliability information by providing direct access to Network Outage Reporting System (“NORS”) and Disaster Information Reporting System (“DIRS”) data. In addition, the FCC will consider a Notice of Proposed Rulemaking that would propose reforms to the agency’s Emergency Alert System (“EAS”) and Wireless Emergency Alerts (“WEA”) System to facilitate comprehensive and timely emergency alerts for mobile devices. Lastly, the agency will consider a Notice of Inquiry on the status of open radio access networks (“Open RAN”) that virtualize certain network infrastructure, potentially increasing communications security.

You will find more details about the most significant items on the March meeting agenda after the break.

3.45 GHz Band Plan – The Report and Order would reallocate 100 megahertz of spectrum in the 3450-3550 MHz (3.45 GHz) band for flexible use wireless service and adopt a band plan as well as performance requirements to implement the new 3.45 GHz service. This framework would enable full-power commercial use while including protections for federal incumbents when and where they require access to the band. The FCC is required by statute to start an auction to grant new flexible use licenses in this band by December 31, 2021. The FCC also would propose modifying the licenses of secondary, non-federal radiolocation operations in the 3.45 GHz band to a new 2.9-3.0 GHz band assignment.

3.45 GHz Auction – The Public Notice would propose application and bidding procedures for the new flexible use licenses in the 3.45 GHz band through Auction 110. The FCC expects the auction to begin in early October 2021. Auction 110 would offer up to 100 megahertz of spectrum on an unpaired basis, divided into five 20-megahertz blocks licensed by Partial Economic Area. The Public Notice would seek comment on the proposed auction procedures, with comments due April 14, 2021 and reply comments due April 29, 2021.

Promoting Public Safety Through Information Sharing – The Report and Order would provide direct, read-only access to NORS and DIRS information for state, federal, local, and Tribal partners to increase public safety data sharing while preserving the confidentiality of providers’ network information. Agencies receiving the information would be permitted to share the NORS and DIRS data with agency officials, first responders, and individuals on a need to know basis, and publicly disclose aggregated and anonymized information derived from NORS or DIRS filings. The Report and Order would create an application process to grant agencies access to the information following a certification process to maintain the confidentiality of the information and databases.

Improving EAS and WEA – The Notice of Proposed Rulemaking (“NPRM”) would implement section 9201 of the National Defense Authorization Act and initiate a proceeding to ensure that mobile devices cannot opt-out of receiving WEA alerts from FEMA. The NPRM also would propose to amend annual reporting requirements for state EAS authorities, enable reporting of false EAS and WEA alerts by the FEMA Administrator as well as state, tribal, and local governments, and require repeating EAS messages when necessary. In an associated Notice of Inquiry, the FCC would seek further comment on delivering and improving EAS messages through Internet platforms, including streaming services.

Promoting Open RAN Networks – The Notice of Inquiry would ask for input on the status of Open RAN and other virtualized network environments. Specifically, the FCC asks for information about the current state of such technologies, what steps are required to deploy and scale Open RAN networks, and how deployment of these Open-RAN-compliant networks could benefit the agency’s policy goals and statutory obligations to increase the security of the nation’s communications networks. The FCC intends for carriers to consider and use the information developed in this proceeding to inform their approaches to next-generation equipment and services.

Spectrum: 2021 Thu, 21 Jan 2021 16:14:34 -0500 Join Partner Chip Yorkgitis and the Wireless Communications Alliance for a look at how the spectral landscape continues to evolve and what to expect in 2021. On January 26 at 7:00 pm EST (4:00 PST), this virtual event will feature deep dives on the key spectral allocations at 3, 6 and 60GHz, review anticipated changes at the FCC, and discuss how 5G is shaping up globally.

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FCC Creates Framework to Fund 5G Deployments in Rural Areas Mon, 30 Nov 2020 14:57:40 -0500 The FCC recently took a major step in promoting deployment of 5G networks in rural and hard-to-serve areas by adopting a Report and Order establishing the 5G Fund for Rural America (5G Fund) support program. The program, which is effectively the wireless counterpart to the wireline-focused Rural Digital Opportunity Fund (RDOF), will offer up to $9 billion over ten years to support the deployment of mobile voice and 5G broadband in these areas. It replaces Phase II of the Mobility Fund, which the FCC mothballed in 2018 after questions arose about the accuracy of wireless coverage data reported by carriers, which was meant to determine which areas are eligible for funding. Half of the 5G Fund budget also comes from repurposing the $4.53 billion that the Commission had originally allotted for 4G LTE deployments under Mobility Fund Phase II. The 5G Fund auction may not occur until 2023 because the Commission opted to wait until it can collect new data on existing deployments to identify areas eligible for support. In the meantime, recipients of legacy mobile high-cost support will be required to start using those funds for 5G networks beginning in 2021.

When the FCC proposed the 5G Fund last May, the biggest sticking point concerned when the Commission would aim to start the auction, which hinged on a decision about what data the FCC would use to identify the areas eligible for support. In the 5G Fund NPRM, the Commission set forth two options. Under the first option, the FCC would initiate Phase I of the auction in 2021 using 10-year old data – primarily census information – to determine rural areas eligible for funding by population (i.e., less than 2,500 people), and then prioritize support to those areas “unlikely” to see 5G deployment absent such investment. Under the second option, the FCC would postpone Phase I until at least 2023 so that it could develop the Digital Opportunity Data Collection (DODC) to collect more granular deployment data. Option 1 had the potential to be both over and under inclusive of eligible areas while option 2 would significantly delay the auction start date. During the proceeding, some commenters urged the Commission to use new Form 477 self-reported data from carriers, as it had tried to do for Mobility Fund Phase II. Ultimately, the Commission selected option 2, prioritizing accuracy and efficient use of funds over speed and declining to use new Form 477 data because the Commission was not convinced it could ensure the data was reliable in a shorter timeframe than using the DODC information.

The Report and Order also places a few other conditions on the selection of eligible areas. First, an area will only be eligible for Phase I of the auction if the DODC shows that there is not already at least one service provider offering unsubsidized 4G LTE or 5G broadband service. Given existing market competition, the Commission thinks that providing support to areas with unsubsidized 4G LTE service could preempt near-term 5G deployments that would already be expected in those areas. Second, the 5G Fund will exclude areas covered by the T-Mobile/Sprint merger. Since new T-Mobile committed to serve 90% of rural Americans within six years as part of the merger agreement, the Commission said providing support to those same areas would be a waste of the limited funds. As a related limitation, while T-Mobile can participate in the auction, it cannot use any 5G Fund awards to support 5G buildouts in areas where it has already committed to deploy under the merger agreement.

Other key elements of the Report and Order include:

Auction Procedures – The FCC will award the funds using a two-phase reverse auction, where the provider offering to serve an area for the least amount of funding is the winner. Phase I would provide up to $8 billion in support, with $680 million reserved for deployments on Tribal lands. Phase II would provide up to $1 billion, plus any funding remaining after Phase I, for deployments for precision agriculture and particularly hard-to-serve areas like farms and ranches. Geographic bidding areas will range from census block groups to census tracts, with the exact grouping of eligible areas to be determined during the pre-auction process. The FCC also adopted an “adjustment factor” that will assign weights and increase support for geographic areas with difficult terrain and other characteristics that make them more costly or less profitable to serve. The exact application of the adjustment factor will also be decided during the pre-auction process.

Performance Requirements – 5G Fund recipients will be required to deploy networks that meet 5G-NR (New Radio) technology standards and provide median speeds of at least 35/3 Mbps. Minimum cell edge speeds must be at least 7/1 Mbps. Round-trip latency on supported services cannot exceed 100 milliseconds. In addition, support recipients would be required to offer at least one service plan with a monthly data allowance equaling the average U.S. subscriber’s data usage. As with prior high-cost programs, support recipients will be required to offer their services at rates “reasonably comparable” to those offered in urban areas and be subject to collocation and roaming obligations.

Deployment Milestones – The FCC adopting escalating deployment milestones for 5G Fund support recipients. Specifically, support recipients will need to offer service meeting the performance requirements to 40% of their service area by the end of the third full calendar year of funding, 60% by year four, 80% by year five, and a final milestone of 85% by year six. To avoid a repeat of the Mobility Fund Phase II coverage data issues, the FCC has imposed strict reporting requirements on 5G Fund support recipients that include on-the-ground testing for each milestone.

ETC Designation and Application Requirements – Like the RDOF, service providers will be able to participate in the 5G Fund auction without first being designated as an eligible telecommunications carrier (ETC), but winning bidders will need to secure such designations in their supported service areas with 180 days to receive funding. The 5G Fund application process also mirrors the RDOF procedures, with service providers initially required to submit a short-form application that includes basic business, financial, and technical information followed by a long-form application for winning bidders with detailed network information and deployment timeframes. Winning bidders also will have to meet letter of credit requirements that are eased as providers hit deployment milestones.

Transitioning Legacy Support – All competitive ETCs receiving legacy high-cost support for 4G LTE mobile wireless service will be required to use an increasing percentage of their support toward the deployment, maintenance, and operation of 5G networks that meet 5G-NR standards. The change will be phased in, with one-third of the support required for 5G in 2021 and two-thirds in 2022. These competitive ETCs will also be required to meet the same speed, latency, data allowance, and “reasonably comparable” rate requirements as 5G Fund recipients.

While the Report and Order solidifies many aspects of the 5G Fund, the Commission will seek additional input on specific auction procedures and eligible area determinations once it starts collecting mapping data through the DODC. That could happen sooner following the change in Administration ­– the two Democratic commissioners have long advocated that the Commission make a bigger effort to get more precise deployment data and could push harder to get funding from Congress for the DODC or for reallocating existing funds toward the effort.

Podcast: Sizing up the FCC in 2021 Tue, 27 Oct 2020 15:58:16 -0400 The upcoming election will bring changes to the FCC, regardless of which party wins the White House. In this episode of Kelley Drye’s Full Spectrum, the Communications group is joined by Dana Wood, co-chair of Kelley Drye’s Government Relations and Public Policy (GRPP) practice, for a discussion of the potential organizational and policy changes under the next administration. The conversation features the future of the digital divide, the race to 5G, Section 230, anti-robocall activities, and more. Click here to listen and look out for post-election coverage from Kelley Drye’s Communications and GRPP groups.

FCC Plans to Finalize Internet Reform, 5G Fund, and TV White Spaces at October Open Meeting Thu, 22 Oct 2020 15:49:03 -0400 The FCC announced the agenda for its last Open Meeting before the upcoming 2020 general election, scheduled for October 27, 2020. The FCC first plans to respond to the remand from the U.S. Court of Appeals for the D.C. Circuit on its Restoring Internet Freedom Order. The Commission will address three issues sent back to the agency for further consideration and largely reiterate its original conclusions regarding the impact of its reforms on public safety, pole attachments, and the Lifeline program. The Commission also plans to finalize its proposed 5G Fund with a two-phase reverse auction to target support for the deployment of 5G networks in rural areas, establishing a ten-year support term and a $9 billion overall budget. The October meeting will also consider allowing unlicensed white space devices to operate on broadcast television channels, as well as streamlining the state and local approval processes for wireless tower modifications. Lastly, the FCC plans to eliminate certain unbundling and resale requirements for incumbent local exchange carriers.

Unlike most monthly Commission meetings, none of the items on the October agenda initiate new proceedings or propose new rules. Instead, the items focus on implementation of a number of policies prioritized under Chairman Pai. FCC regulatory activity will likely slow in the aftermath of the election. As a result, the October agenda may represent the FCC’s final push for any major reforms in the near-term. However, on October 15, Chairman Pai did announce his intention to move forward with a rulemaking to interpret the meaning of Section 230 of the Communications Decency Act. You will find more details on the significant October meeting items after the break:

Restoring Internet Freedom Order Remand: The draft Order on Remand would respond to the remand from the D.C. Circuit in Mozilla Corp v. FCC, which upheld a majority of the FCC’s decisions on broadband Internet access service regulation and classification in the 2017 Restoring Internet Freedom Order, but remanded three issues back to the agency for further consideration. The FCC would address each issue and find that its initial conclusions in the 2017 order promote public safety communications, facilitate broadband infrastructure deployment through pole attachment rights, and allow the Commission to continue to provide Lifeline support conditioned on providing broadband internet access service. The agency would find there is no basis for departing from these original conclusions and that any negative effects on these sectors resulting from its classification of broadband Internet access service in the 2017 order would be limited or otherwise outweighed by the benefits of the “light-touch” regulatory framework for broadband.

Establishing a 5G Fund for Rural America: The draft Report and Order would adopt the 5G Fund using a two-phase reverse auction targeting support for deploying 5G networks in areas without an unsubsidized provider of either 4G LTE or 5G mobile broadband. Proposed in an April 2020 Notice of Proposed Rulemaking (“NPRM”), the draft Order would adopt a 10-year term of support and an overall budget of $9 billion for the 5G Fund. Phase I of the auction would make available up to $8 billion, with $680 million set aside for bidders offering to serve Tribal lands, and Phase II would make at least $1 billion available to target deployment facilitating adoption of precision agriculture technologies. The FCC would adopt its proposal to determine which areas would be eligible for 5G Fund support from data collected through the upcoming Digital Opportunity Data Collection, and would impose performance requirements on carriers continuing to receive legacy mobile high-cost support.

Unlicensed Wireless Opportunities in TV White Spaces: The draft Report and Order would adopt changes to the Part 15 unlicensed device rules, as proposed in the Commission’s February 2020 NPRM, to expand the ability of white spaces devices to deliver wireless broadband services in rural areas. The Order would increase the maximum permissible power for fixed white space devices operating on TV channels 2-35 in “less congested areas” and allow higher-power mobile operations within defined geographic areas. The FCC would also adopt rule changes to facilitate the development of narrowband Internet of Things devices and services in the TV bands.

Streamlining Approval of Wireless Infrastructure Modifications: The draft Report and Order would revise the Commission’s section 6409(a) rules to provide for streamlined state and local review of tower modifications that involve limited ground excavation or deployment beyond site boundaries. The rule revision would establish that, for towers not located in the public rights-of-way, a modification of an existing site needing ground excavation or deployment of up to 30 feet will not be disqualified from streamlined processing on that basis. The draft Order would also promote accelerated deployment of 5G and other advanced wireless services by facilitating the collocation of antennas and associated equipment on existing infrastructure, while preserving the ability of state and local governments to manage and protect local land-use interests.

Modernizing Unbundling and Resale Requirements: The draft Report and Order would eliminate and modernize unbundling and resale requirements for incumbent local exchange carriers (“LECs”). The FCC would eliminate certain unbundling requirements for specific broadband-capable loops, subject to reasonable transition periods, in more densely populated areas, but preserve unbundling requirements in less densely populated areas without sufficient evidence of competition. The draft Order would also forbear from the avoided-cost resale obligation for non-price cap carrier incumbent LECs, subject to a three-year transition period.

Podcast: Closing the Digital Divide and Enabling Connected Life Tue, 01 Sep 2020 13:09:36 -0400 Americans who lack high-speed broadband internet access are caught on the wrong side of the “Digital Divide,” with students facing a “homework gap” and adults, and even entire communities, facing an “opportunity gap” that impacts everything from jobs, education, and healthcare to sustainability and well-being. This episode of Kelley Drye’s Legal Download discusses the increasing importance of access to advanced communications networks and services, and a few of the legal issues involved in closing the digital divide and enabling connected life.

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Proposed Wireless Infrastructure Item Clarifies Rules Concerning Local Reviews to Speed 5G Deployments Thu, 04 Jun 2020 17:38:48 -0400 A draft Declaratory Ruling and Notice of Proposed Rulemaking ("NPRM"), if adopted, would clarify the agency’s 2014 rules governing the process state and local governments use to review deployments of new antenna and equipment on existing wireless infrastructure and seek comment on a related proposal concerning excavations for such expansions. The clarifications, which are meant to speed the deployment of 5G infrastructure, largely mirror those sought in a pair of petitions for declaratory ruling filed by the Wireless Infrastructure Association ("WIA") and CTIA in the fall of 2019. Those petitions allege that despite the 2014 rules, states and localities continue to erect barriers that slow their ability to add new facilities to existing infrastructure. In comments on the petitions, states and localities contend that they are substantially complying with the rules and that any delays are caused by applicants or their contractors. However, the FCC apparently plans to move forward with adopting most, though not all, of the industry group clarification requests.

For those who have been following the FCC over the past three years under Chairman Pai’s leadership, the draft item builds on the agency’s multifaceted effort to pave a clear path for the private sector to deploy 5G technologies. Prior efforts include repurposing low-, mid-, and high-band spectrum for mobile wireless operations, reducing the circumstances under which wireless infrastructure deployments must undergo federal historic preservation and environmental reviews, and preempting states and localities from using review processes to slow the deployment of small cells.

The agency is set to vote on the item at its June 9, 2020, open meeting.

Declaratory Ruling Clarifying Local Review Rules

The draft Declaratory Ruling is meant to strengthen several of the rules the FCC adopted in 2014 to implement Section 6409(a) of the Spectrum Act of 2012. That section says that “a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” The Commission’s rules implementing the statute were meant to provide clarity and guidance to state and local governments and the wireless industry on how to apply the statutory directive. The WIA and CTIA petitions claim that certain conditions established by states and localities continue to impede the deployment of private 5G networks. Accordingly, the draft Declaratory Ruling addresses the following:

  • Trigger for 60-Day Shot Clock – Under existing rules, state and local governments must approve or deny an eligible facilities request within 60 days or the request is deemed granted. The shot-clock begins on the day an applicant submits a request. The draft Declaratory Ruling would clarify that an applicant is deemed to have submitted a request when it “takes the first procedural step in a locality’s application process and submits written documentation showing that a proposed modification is an eligible facilities request.” This clarification is intended to preserve localities flexibility to structure their permitting procedures, but prohibit localities from treating applications as incomplete unless applicants comply with a series of time-consuming requirements.
  • Other Shot Clock Clarifications – The Declaratory Ruling would also prohibit localities from delaying the triggering or starting of the shot clock by (1) “establishing a ‘first step’ that is outside of the applicant’s control or is not objectively verifiable”; (2) “defining the ‘first step’ as a combination or sequencing of steps”; (3) declining to accept documentation required under FCC rules to demonstrate the eligible facilities request conditions are satisfied or requiring the submission of other documentation; and (4) using requirements to obtain conditional use permits, variances, or other similar types of authorizations to cause delays. Additionally, it would establish the submission of a typical filing for a standard zoning or siting review as the first procedural step in jurisdictions that have not established specific procedures.
  • Separation Between Existing and New Antenna ­– Under existing rules, a tower modification outside public rights-of-way would cause a substantial change if it “increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater.” The Declaratory Ruling would clarify that “separation from the nearest existing antenna” means the distance from the top of the highest existing antenna to the bottom of the proposed new antenna that would be deployed above it.
  • Equipment Cabinets ­– Under existing rules, the number of new equipment cabinets affects whether a modification would cause a substantial change. The Declaratory Ruling would clarify that “equipment cabinets” does not include “small pieces of equipment such as remote radio heads/remote radio units, amplifiers, transceivers mounted behind antennas, and similar devices” if they “are not used as physical containers for smaller, distinct devices.” It declines to determine that “equipment cabinets” means only those installed on the ground.
  • Concealment Elements – Existing rules state that a modification would substantially change an existing structure if it would “defeat the concealment elements” of the structure that was originally approved. The Declaratory Ruling would specify that a “concealment element” is one “that is part of a stealth-designed facility intended to make a structure look like something other than a wireless facility” and was part of a prior approval. An attribute that minimizes the visual impact of a facility or that was not considered a concealment element at the time of initial approval would not be considered a modification. The FCC proposes to clarify that a proposed modification “defeats” a concealment element if it would “cause a reasonable person to view a structure’s intended stealth design as no longer effective.”
  • Limits on Other Conditions – Existing rules provide that a modification is a substantial change if it does not comply with any other original “conditions associated with the siting approval.” The Declaratory Ruling would clarify that “conditions associated with the siting approval” can include aesthetic conditions to minimize the visual impact of a wireless facility as long as the conditions do not prevent modifications explicitly allowed by rules that would permit modifications based on antenna height, antenna width, equipment cabinets, and excavations or deployments outside the current site, and “so long as there is express evidence that at the time of approval the locality required the feature and conditioned approval upon its continuing existence.”
  • Effect of Environmental Impact Agreements – Under existing rules, environmental impact assessments must occur when certain defined actions during construction of a facility might significantly affect the environment, including historic properties. The Declaratory Ruling would clarify that such assessments are not required when the FCC and applicants have entered into a memorandum of agreement to mitigate effects of a proposed deployment on historic properties if the only basis for the assessment was the potential for significant effects on such properties.
NPRM Concerning Excavation Outside of Existing Tower Sites

The Commission opted to issue an NPRM on one additional proposal in the WIA petition, regarding when a modification requires excavations. Existing rules provide that “[a] modification substantially changes the physical dimensions of an eligible support structure if . . . [i]t entails any excavation or deployment outside the current site” of a tower or base station, and is therefore not eligible for the streamlined procedures under the statute. Industry and localities disagree on whether “current site” means the boundaries at the time the tower was first approved or at the time the applicant seeks approval for a modification. WIA also asked the Commission to change its rules so that “a modification would not cause a “substantial change” if it entails excavation or facility deployments at locations of up to 30 feet in any direction outside the boundaries of a macro tower compound,” on the basis that colocation on existing towers is difficult to achieve without increasing the size of compounds. The NPRM seeks comment on these issues.

Democrats and Republicans Clash in Congressional Letters on Item

Democrats and Republicans on the House Energy and Commerce Committee sent competing letters to FCC Chairman Pai concerning the draft item. Democrats asked that he delay the vote on the item, saying that “under the guise of clarifying . . . existing rules, [it] would grant companies the right to expand existing cell sites without any regard to local processes” and without meaningful insight from local governments, who are currently burdened with responding to the ongoing coronavirus pandemic. Republicans urged the FCC to press forward with the vote, also evoking the coronavirus pandemic to assert that the item would reduce “unnecessary regulatory burdens,” which would further streamline deployment and facilitate connectivity that is even more critical “[d]uring these unprecedented times.”

At the FCC, the two Democratic commissioners, Rosenworcel and Starks, expressed support for delaying the vote.As of this writing, Chairman Pai and Commissioner O’Rielly have not commented on the delay request. Republican Commissioner Carr strongly supports the item and is leading the charge for its adoption. We expect the vote to proceed and the item to be approved largely unchanged.

FCC Plans to Finalize Phase I RDOF Auction Procedures and Explore 5G Use of High-Band Frequencies at June Meeting Wed, 27 May 2020 20:31:32 -0400 The FCC plans to focus on “bread and butter” issues of broadband deployment and expanding commercial spectrum use at its next meeting, scheduled for June 9, 2020. Specifically, the FCC anticipates adopting final auction procedures for Phase I of the Rural Digital Opportunity Fund (“RDOF”), which will provide up to $16 billion over 10 years to support broadband deployment in rural and other hard-to-serve areas. Rejecting calls for delay during the ongoing COVID-19 pandemic, the FCC would commence the auction on October 29, 2020. The FCC also would address bidding area, performance requirement, and letter of credit issues that drew heated debate at the rulemaking stage. In addition, the FCC anticipates seeking comment on rule changes to expand use of high-band spectrum in the 71-76 GHz, 81-86 GHz, 92-94 GHz, and 94.1-95 GHz bands (“70/80/90 GHz Bands”) to support wireless 5G backhaul and other services. The 70/80/90 GHz Bands proposal is just the latest in a slew of FCC actions designed to open up more spectrum for commercial use, and would seek input on technical and operational rules to avoid interference to incumbent operations. Rounding out the major June items, the FCC plans to clarify key timeframes and criteria for state and local reviews of requests to modify existing wireless infrastructure to remove purported barriers to network improvements.

Covering the gamut of network funding, spectrum resources, and construction, the June meeting items will impact nearly all providers of 5G and other next-generation technologies and deserve close attention. You will find more information on the significant June meeting items after the break:

RDOF Phase I Auction Procedures: The FCC’s draft Public Notice would establish RDOF Phase I auction procedures that largely mirror the agency’s initial proposals for the program. In particular, the FCC would require auction participants to bid by census block group and establish an auction weighting mechanism that favors higher-speed, lower-latency services when awarding support. Auction winners would be required to offer service at the bid-upon performance level to 40% of the supported locations by the end of the third full calendar year following funding authorization and to an additional 20% of locations each year thereafter. As expected, service providers would be required to file a short-form application including basic ownership, technical, and financial information to participate in the auction, followed by a long-form application from auction winners providing detailed network descriptions and deployment plans. Auction winners would be obligated to obtain a letter of credit that would increase in value until the service providers begin to satisfy their deployment milestones. Service providers would not be required to receive designation as an eligible telecommunications carrier by the FCC or state authority to participate in the RDOF Phase I auction, but they would need to receive such designation before receiving any funding under the program.

Expanding High-Band Frequency Access: The FCC’s Notice of Proposed Rulemaking and Order would seek comment on proposed changes to the rules governing the use of the 70/80/90 GHz Bands to support wireless 5G backhaul and broadband services onboard aircrafts and ships. First, the FCC would propose changes to antenna standards for the 70 and 80 GHz Bands to permit the use of smaller antennas and ask whether it should make similar changes to the standards for the 90 GHz Band. Second, the FCC would seek input on authorizing point-to-point links to endpoints in motion in the 70 and 80 GHz Bands and classifying those links as “mobile” services to support new offerings. Third, the FCC would request comment on whether it should change its link registration process for the 70/80/90 GHz Bands to eliminate never-constructed links from third-party registration databases, thereby opening the spectrum for new registrations. Finally, the FCC would propose power limits and other technical and operational rules to prevent harmful interference to incumbent operations in the 70/80/90 GHz Bands. As the 70/80/90 GHz Bands are currently allocated to co-primary Federal and non-Federal use, the FCC would coordinate any rule changes with affected federal agency incumbents through the National Telecommunications and Information Administration.

Clarifying State/Local Wireless Review: The FCC’s Declaratory Ruling and Notice of Proposed Rulemaking would clarify agency rules implementing Section 6409(a) of the Spectrum Act of 2012, which streamlines state and local reviews of requests to modify existing wireless infrastructure. Section 6409(a) and associated FCC rules require state and local governments to approve modification requests for existing wireless towers and base stations within 60 days as long as the modification does not “substantially change” the physical dimensions of the tower or base station. However, confusion exists among service providers and government authorities on when this 60-day shot clock begins. The FCC would clarify that the 60-day shot clock begins to run when a requester takes the first procedural step in a locality’s application process and submits written documentation showing that a proposed modification is eligible for streamlined treatment under Section 6409(a). The FCC would find that this approach would prevent localities from effectively postponing wireless network modifications through multiple interim procedural hurdles. The FCC also would clarify what types of infrastructure modifications represent a “substantial change” that would not qualify for streamlined treatment under Section 6409(a).

FCC Proposes 5G Fund for Rural Wireless Networks, But Timing Remains Uncertain Sun, 03 May 2020 12:09:20 -0400 The FCC plans to create a new “5G Fund” offering up to $9 billion over ten years to support the deployment of wireless broadband and voice services in rural and other hard-to-serve areas. Under a Notice of Proposed Rulemaking ("NPRM") adopted at the FCC’s April meeting, the 5G Fund would operate as the wireless counterpart to the wireline-focused Rural Digital Opportunity Fund ("RDOF") approved earlier this year and replace Phase II of the Mobility Fund, which the FCC mothballed in 2018 after questions arose about reported coverage data. The NPRM proposes awarding funding through auction in two phases. Phase I would provide up to $8 billion in support, with $680 million reserved for deployments on Tribal lands. Phase II would provide up to $1 billion (plus any funding remaining after Phase I) for deployments for precision agriculture and particularly hard-to-serve areas like farms and ranches. The 5G Fund would exclude areas covered by the recently-approved T-Mobile/Sprint merger, which included a commitment to serve 90% of rural Americans within six years. The NPRM is just the first step towards launching the 5G Fund and presents an opportunity for all stakeholders to provide their input on the fundamental policies and procedures the will govern the new program.

The main sticking point among the Commissioners is over when Phase I should begin, and on what basis. The NPRM seeks comment on two options. Under the first option, the FCC would initiate Phase I in 2021 and use existing data sources – primarily census information – to determine rural areas eligible for funding by population (i.e., less than 2,500 people), and then prioritize support to those areas “unlikely” to see 5G deployment on their own. The FCC seeks comment on whether alternative data sources exist and whether a population density threshold may be more appropriate. The FCC plans to prioritize support to areas historically lacking 4G LTE (or even 3G) service. However, recognizing the deficiencies in existing wireless coverage data, the FCC asks for input on relevant information sources to make this historical determination. Under the second option, the FCC would postpone Phase I until at least 2023 in order to use more granular deployment data developed through its upcoming Digital Opportunity Data Collection. The NPRM asserts that the delay stems from a lack of appropriations under the recent Broadband DATA Act, which requires the FCC to significantly improve its broadband coverage maps. Without such appropriations, the FCC contends that it would need time to reallocate existing resources to broadband mapping that it would eventually use to determine rural areas lacking 5G service eligible for funding. Both options have their detractors, with critics of the first option noting that available census data already are almost ten years old as well as the importance of ensuring funding goes to areas actually lacking 5G service, and with detractors of the second option warning that funding delays would only widen the urban/rural digital divide. At the April Open Meeting, the two Democratic Commissioners dissented in part, suggesting that the NPRM presents a false choice between speed and accuracy.

Other key elements of the FCC’s 5G Fund proposal include:

  • Auction Procedures: As with the RDOF, the FCC plans to award 5G Fund support through a “reverse” auction, where the provider offering to serve an area for the least amount of funding is the winner. Auction participants would bid by census tract (or a potentially larger area) and the FCC’s proposes applying an “adjustment” factor to increase the funding available for tracts with difficult terrain and other characteristics increasing service costs. The FCC plans to issue proposed adjustment factor criteria and seek comment on such criteria at a later date.
  • Performance Requirements: The FCC proposes requiring 5G Fund support recipients to provide speeds of at least 35/3 Mbps, with potential increases over time to reflect service advancements. Support recipients would be required to provide a minimum cell-edge download speed of 7/1 Mbps, with a 90% coverage probability and 50% cell loading factor. The FCC also would cap supported service latency at 100 milliseconds per round trip. In addition, support recipients would be required to offer at least one service plan with a data allowance equaling the average U.S. subscriber’s data usage. As with prior high-cost programs, support recipients would be required to offer their services at rates “reasonably comparable” to those offered in urban areas and be subject to collocation and roaming obligations.
  • Deployment Milestones: The FCC anticipates adopting escalating deployment milestones for 5G Fund support recipients. Specifically, support recipients would be required to offer service meeting the performance requirements to 40% of their service area by the end of the third full calendar year of funding, with the deployment requirement increasing to 60% by year four, 80% by year five, and 85% by year six as the final milestone. To avoid a repeat of the Mobility Fund Phase II coverage data issues, the FCC plans to impose strict reporting requirements on 5G Fund support recipients that include significant on-the-ground testing and standardized propagation modeling.
  • Transitioning Legacy Support: The FCC seeks comment on how best to transition existing high-cost support to 5G Fund auction winners. In particular, the FCC proposes phasing down all legacy high-cost support over no more than five years, with legacy support recipients required to meet the same performance requirements as 5G Fund auction winners on an accelerated schedule to receive transition funding.
  • ETC Designation and Application Requirements: Like the RDOF, the FCC plans to permit service providers to participate in the 5G Fund auction without first being designated as an eligible telecommunications carrier ("ETC"). However, winning bidders would be required to obtain an ETC designation in their supported service areas before receiving any funding. The 5G Fund application process also would mirror RDOF procedures, with service providers initially submitting a short-form application including basic information on their identity, ownership, and financial/technical qualifications followed by a long-form application for winning bidders providing detailed network information and deployment timeframes. Winning bidders also would be required to meet letter of credit requirements, which could be eased as the providers hit deployment milestones.
As with the RDOF, the FCC’s 5G Fund proceeding is sure to generate significant comment, with stakeholders already divided over the appropriate timeframes, performance requirements, and legacy transition procedures. With its 10-year budget term, the 5G Fund has the potential to significantly reshape the rural wireless competitive landscape and warrants close attention. Even at this early stage, the FCC’s 5G Fund proposals are complex and contain potential pitfalls for the unwary. As a result, advance preparation and sound counsel will be critical to the success of 5G Fund applicants.

FCC Plans to Open Up 6 GHz Band for Unlicensed Use, Propose $9 Billion Rural Mobility Fund, and Address Orbital Debris at April Meeting Tue, 07 Apr 2020 16:50:00 -0400 As the flurry of coronavirus-related actions continues, the FCC plans to return to “bread and butter” policy areas of spectrum and rural 5G deployment at its next meeting scheduled for April 23, 2020. First, the FCC plans to move forward on its proposal to open up 6 GHz band spectrum (5.925-7.125 GHz) for unlicensed use by smartphones, IoT devices, and other technologies. The FCC would allow standard-power unlicensed operations in certain band segments, subject to controls designed to avoid interference with incumbent microwave, cable, and satellite operators. The FCC also would permit lower-power unlicensed operations across the entire band, but only for indoor uses. Second, the FCC would consider a Notice of Proposed Rulemaking to seek public input on a “5G Fund” offering up to $9 billion over ten years through an auction to support deployment of wireless broadband and voice services in rural and other hard-to-serve areas. The 5G Fund would represent the wireless counterpart to the wireline-focused Rural Digital Opportunity Fund adopted earlier this year and replace Phase II of the Mobility Fund, which the FCC mothballed after questions arose about reported coverage data. Finally, the FCC would update its orbital debris mitigation requirements to mandate additional disclosures and incorporate new inter-agency standards.

Running the gamut from rural networks to outer space, the FCC’s April agenda will impact service providers across the industry. Consequently, stakeholders should closely examine the deployment and funding opportunities presented in the FCC’s proposals. You will find more information on the key April meeting items after the break:

Unlicensed Use of 6 GHz Band: The draft Report and Order and Further Notice of Proposed Rulemaking would authorize two types of unlicensed operations in the 6 GHz band. First, the FCC would permit unlicensed operations in the 5.925-6.425 GHz and 6.525-6.875 GHz sub-bands at standard power levels used in nearby bands (i.e., 23 dBm/MHz), provided such operations use an automated frequency control (AFC) system. The AFC would determine the frequencies available for use without causing harmful interference to incumbent operators and make only those frequencies available for unlicensed operations. Second, the FCC would permit unlicensed operations across the entire 1,200 megahertz of the 6 GHz band at a lower power (i.e., 5 dBm/MHz) without an AFC system, but restrict such operations to indoor uses. The FCC would seek comment on allowing a higher power level (i.e., up to 8 dBm/MHz) for indoor unlicensed operations. The agency also plans to ask whether it should permit very low power unlicensed operations without an AFC system both indoors and outdoors and, if so, what that power level should be.

5G Fund: The draft Notice of Proposed Rulemaking and Order would seek comment on establishing a 5G Fund to provide up to $9 billon to support the deployment of 5G mobile broadband and voice networks in rural and other hard-to-serve areas over ten years. The 5G Fund would support deployments in areas left uncovered by the recently-approved T-Mobile/Sprint merger, which included a commitment to serve 90% of rural Americans within six years. Under the FCC’s proposal, funding would be awarded through competitive bidding in two phases. Phase I would provide up to $8 billion in support, including $680 million in funding reserved for deployments on Tribal lands. The FCC would request input on two options for the Phase I timeframe. Under the first option, the FCC would initiate Phase I in 2021 using existing wireless deployment data to determine eligible areas and prioritize support for areas historically lacking 4G LTE (or even 3G) service. Under the second option, the FCC would hold off on Phase I until at least 2023 in order to use more granular deployment data developed through its upcoming Digital Opportunity Data Collection. Phase II would take place after the completion of Phase I, targeting especially hard-to-serve areas and reserving at least $1 billion to support networks used for precision agriculture. In addition, the FCC would seek comment on 5G Fund auction procedures as well as the appropriate eligibility, application, and performance requirements for auction participants.

Orbital Debris Mitigation: The draft Report and Order and Further Notice of Proposed Rulemaking would mark the FCC’s first major update to its orbital debris mitigation requirements in over 15 years and incorporate a number of recommendations developed by the agency with NASA, the Defense Department, and other federal agencies. The FCC would require all satellites to be able to perform collision avoidance maneuvers any time they are in orbit above the International Space Station (approximately 400 kilometers altitude). The FCC also would update its disclosure requirements to include new information related to satellite collision risk, protecting inhabitable spacecraft, maneuverability, and how operators plan to share information related to space situational awareness. In addition, the FCC would codify requirements for geostationary-orbit satellite license extensions and limit such extensions to five years. The FCC further plans to ask whether it should impose a bond requirement for geostationary and non-geostationary space stations contingent on successful post-mission station disposal.

Scheduling the Race to the “C-Band” Auction Thu, 26 Mar 2020 21:17:26 -0400 On March 3, 2020, the Federal Communications Commission (“FCC” or “Commission”) released its Report and Order and Order of Proposed Modification (FCC 20-22) (respectively, the “C-Band Order” and the “Proposed License Modification”) realigning the 3.7-4.2 GHz Band in the contiguous United States and proposing to modify most of the satellite, earth station, and fixed service licenses in the Band. If one sorts out the significant deadlines established by the C-Band Order leading up to the target date for the auction of the 3700-3980 MHz range, namely December 8, 2020, and the transition of incumbent space station and earth station operations and fixed service stations which must be completed in the auction’s wake, the heavy lifting required before the auction proceeds is plain. In the attached advisory, these deadlines are discussed in some detail. Here, they are presented in abridged fashion.

For more information, register here for our April 2 C-Band Update webinar.

Clearing Deadlines for Satellite Service and Fixed Operations

Non-TT&C Operations in the 3700-4000 MHz Range

  • Incumbent eligible space station operators have until December 5, 2025 to clear the 3700-4000 MHz band in the contiguous United States, unless they elect to receive Accelerated Relocation Payments.
  • If Intelsat and SES elect Accelerated Relocation Payments, they and other eligible space station operators that make a similar election,
    • will have until December 5, 2021, to clear 3700-3820 MHz in 46 of the top 50 Principal Economic Areas (“PEAs”) and provide the associated earth station operators now operating in that range with passband filters in order to receive the Phase I accelerated payments (contingent on also meeting the Phase II deadlines), and
    • will have until December 5, 2023, to clear the entire 3700-4000 MHz range and provide filters to receive the Phase II accelerated payments and keep any Phase I payments received.

TT&C Stations within the 3700-4000 MHz Range to Receive Extended Protection

  • Incumbent space station operators must identify four locations where TT&C functions in CONUS will be consolidated by June 12, 2020.
    • The consolidation must occur by December 5, 2021, with possible exceptions by waiver or agreement.
    • Until December 5, 2030, operation of TT&C functions at the four consolidated locations will be permitted and protected.
    • At other existing TT&C locations, operations (both TT&C functions and other earth station functions) on a secondary, unprotected basis will be permitted after December 5, 2021, for another nine years.)

Sunset Date for Incumbent Fixed Wireless Services in the Entire 3.7-4.2 GHz Band

  • Incumbent Fixed Service point-to-point licenses through the entire 3.7-4.2 GHz Band will sunset as of December 5, 2023, limited to CONUS. Incumbent point-to-point fixed service links that transition to other bands will be entitled to reimbursement for “comparable facilities” in such other band, provided they relocate by December 5, 2023.
Dates Triggered by the Federal Register Publication (which will not occur before March 30)

Reconsideration and Judicial Review Opportunities

  • Reconsideration of the C-Band Order will be due within thirty (30) days of its publication in the Federal Register.
  • Petitions for judicial review of the C-Band Order to a U.S. Court of Appeals will be due within sixty (60) days of the Federal Register publication.

Protest of Proposed C-Band License Modifications

  • Any protests of the FCC’s proposed modification of licenses and authorizations of all 3.7-4.2 GHz FSS licensees and market access holders; all affected transmit-receive earth station licenses, and all Fixed Service licenses in the band will be due thirty (30) days after the Federal Register publication of the proposed modifications in the C-band Order.

Relocation Payment Clearinghouse Selection Committee Formation and Action

  • The Relocation Payment Clearinghouse committee consisting of nine designated representatives of satellite operators, incumbent earth stations, and prospective flexible-use licensees, must convene within 60 days after publication of the C-Band Order in the Federal Register.
  • The committee must notify the FCC of the selection criteria it will by June 1, 2020.
  • By July 31, 2020, the committee must notify the Commission of a consensus choice for the Clearinghouse or it will be reformed and trimmed by the Commission, and the seven remaining members must choose a Clearinghouse by majority vote by August 14, 2020.

Effective Date of Rules

  • Generally, the C-Band Order provides that the Commission’s new rules for the 3.7-4.2 GHz Band will be effective 60 days after publication in the Federal Register. But the rules that require Office Management and Budget (“OMB”) review under the Paperwork Reduction Act (“PRA”) will be effective only after OMB approval and a subsequent notice is published in the Federal Register by the Commission.
    • On March 26, 2020, the FCC sought comment on several rules for purposes of OMB review, setting a comment deadline of Monday, April 27, 2020, hoping to keep some near-term deadlines on track.
Deadlines with Specific Dates

Comment on Competitive Bidding Procedures and Dates

  • Comments and reply comments in response to the March 3, 2020, Public Notice, are due May 1 and May 15, 2020.

Qualifying for Accelerated Relocation Payments

  • By May 12, 2020, the Wireless Telecommunications Bureau (“WTB”) is to prescribe the “precise form” of an Accelerated Relocation Election.
  • A satellite operator’s Accelerate Relocation Election, if it chooses to make one, will be public and irrevocable and is due by May 29, 2020.
  • By June 5, 2020, the WTB is to issue a Public Notice announcing whether sufficient elections have been made to trigger early relocation or not – i.e., did both Intelsat and SES elect to accelerate relocation.

Deadlines for All Space Station Operator Transition Plans and Comments

  • Each space station operator, whether electing early relocation payments or not, must file by June 12, 2020, a Transition Plan describing necessary steps and estimated transition costs to clear 3700-4000 MHz Band by the applicable deadlines.
  • Interested parties will have an opportunity to comment on the Transition Plans by July 13, 2020.

Relocation Coordinator Selection

  • The search committee for the Relocation Coordinator must notify the Commission of its choice by July 31, 2020, after which the WTB will issue a Public Notice seeking comment on whether the committee’s choice meets the criteria for the Coordinator set out in the C-Band Order.

Space Station Operator and Relocation Coordinator Status Reports

  • Beginning on December 31, 2020, and continuing until the transitions are complete, space station operators and the Relocation Coordinator must file quarterly reports on progress of the transition in a form to be established by the WTB.
Deadline Triggered by FCC Notices

Deadline for Earth Station Operators to Elect How They Will Be Reimbursed

  • Earth station operators can accept reimbursement for the actual documented reasonable relocation costs of each earth station that maintains satellite reception and is relocated to the 4000-4200 MHz range, or they can accept a reimbursement for all of their incumbent earth stations based on a per station amount (i.e., lump sum) to be established by the WTB for various classes of earth stations. They will have to make that election within 30 days after release of the Bureau’s announcements.
Tasks without Clear Deadlines

Multi-Stakeholder Technical Group Formation and Completion of Work

  • The Commission set no deadlines for the multi-stakeholder group consisting of incumbent earth station operators, incumbent space station operators, wireless network operators, network equipment manufacturers, and aeronautical radionavigation equipment manufacturers that will address coexistence issues in the 3.7-4.2 GHz Band and work towards technical solutions. The Office of Engineering and Technology is to inform the group as to time frames in which input would be helpful.

FCC Postponing 3.5 GHz Auction on Account of COVID-19; Agency Hopes to Keep 3.7-4.2 GHz Auction on Track Wed, 25 Mar 2020 16:40:30 -0400 On March 25, 2020, the Federal Communications Commission announced a one-month postponement of the 3.5 GHz auction (3550-3650 GHz) in the Citizen’s Broadband Radio Service (“CBRS”), a.k.a. Auction 105. The Commission cited the need “to protect the health and safety of Commission staff during the auction and [the ancillary benefit” that parties have additional time to prepare to participate.” FCC Chairman Ajit Pai reiterated the agency’s commitment to hold the auction this summer. The band is the first in the so-called mid-band, a range of spectrum seen as critical to the roll out of 5G wireless applications. Commissioner Michael O’Rielly tweeted today that a further delay would be unlikely absent absolutely compelling circumstances. The start of the auction has been postponed to July 23, 2020, (from June 25, 2020), and the new short-form application filing window is April 23 through May 7, 2020.

The Commission also postponed indefinitely its Auction 106, which was set to begin April 28, 2020, and was selling through competitive bidding construction permits in the FM broadcast service.

So far, Auction 107, which will be used to license through competitive bidding 280 megahertz of spectrum in the 3.7-4.2 GHz range, is still slated to begin December 8, 2020, and it is too early to suggest that the coronavirus pandemic will have an impact on timing. However, there is still something of a race against time. The regulatory framework for the band the FCC just adopted in its February 28, 2020, Report and Order is riddled with a sequence of deadlines until the auction begins, and the first dates are fast approaching. In an effort to keep things on track, the Commission has asked the Office of Management and Budget (“OMB’s”) for emergency review of the information collection requirements in certain rules adopted which impact impending deadlines, that require OMB’s approval under the Federal Paperwork Reduction Act. Tomorrow, March 26, 2020, the FCC is scheduled to publish in the Federal Register its notice seeking comment on several rules for purposes of OMB Review. We expect the resulting (30-day) comment date to be Monday, April 27, 2020. The rules for which the Commission seeks emergency review require “eligible space station operators” that elect to commit to clear satellite operations in the 3700-4000 MHz band on the accelerated schedule set out in the Report and Order in exchange for accelerated relocation payments to make their written election with the Commission by May 29, 2020. Further, all space station operators with operations in the 3.7-4.2 GHz Band must submit their transition plans by which they would clear the band, whether on the accelerated or regular schedule, by June 12, 2020. The Commission hopes for expedited OMB review to permit these rules to become effective in a timely fashion and keep the rest of the schedule, which we describe in detail in a companion post, intact.

Pai Offers Highlights of His 3.7-4.2 GHz Band Proposal; Particulars Presently Forthcoming Fri, 07 Feb 2020 10:33:09 -0500 On Thursday, February 6, in a speech at the Information Technology and Innovation Foundation, Federal Communications Chairman Ajit Pai outlined his proposal for the realignment of 3.7-4.2 GHz, the so-called C-Band. Later in the day, the FCC website posted a summary of the Chairman’s proposals, and Republican Commissioners Carr and O’Rielly released statements in support of the initiative. A draft order is expected sometime today, February 7, which will fill in a lot of gaps missing from the broad brushstrokes the Chairman outlined.

While many details were lacking, the Chairman confirmed his previously shared intentions that the FCC adopt rules to move existing satellite operators and earth stations outside of the 3700-4000 MHz range to make way for a public auction of the lower 280 megahertz of spectrum in that range, beginning as early as December 8, 2020. The top 200 megahertz of the C-Band (4000-4200 MHz) would be available for repacking the earth station operators currently in the lower 300 megahertz.

The Chairman’s remarks and summary also proposes what he calls “accelerated relocation payments” designed to create incentives for an early migration from the lower portion of the band. His proposal would entitle satellite operators to receive these payments if they clear the lower 100 megahertz of the C-band in 46 of the top fifty Partial Economic Areas by September 2021 and the remaining 180 megahertz of the C-band by September 2023. Apart from the general statements about timing, the exact mechanics and conditions for satellite operators’ receipt of the payments were not spelled out except that there would be accelerated relocation payments from the winning bidders outside of winning bid payments to the FCC/US Treasury and there would be no pro-rated accelerated relocation payments. He also explained that satellite operators may be entitled to total accelerated relocation payments of up to $9.7 billion. Because of questions about the Commission’s authority to do so, without Congressional action, the Chairman explained that satellite operators would not receive a percentage of auction revenues.

Chairman Pai recommitted to a framework by which winning bidders would also reimburse satellite operators for “every single reasonable cost” of relocation, noting that “[a]mong other things, new satellites will need to be launched, and filters will need to be placed on earth stations,” estimating total relocation costs of $3-5 billion.

The Chairman also explained why he is not waiting for Congressional action before moving to adopt rules, despite continued calls from Capitol Hill that the Commission do so. First and foremost, in order to maintain what Chairman Pai called the U.S. leadership in 5G, he believes the time to move and make available significant mid-band spectrum for advanced flexible use applications is now. He also expressed a confidence that there are no legal impediments to his proposed rules. He explained his view that, under the Communications Act, “we have the authority to modify the licenses of C-band incumbents, which would still be able to provide the same level of service to their customers that they do today,” noting the Commission’s general auction and rulemaking authority, and hearkening to the FCC’s court-tested Emerging Technologies Framework precedents by which the Commission has required winning auction bidders to pay for the relocation of affected incumbents. While dismissing arguments that the Commission should wait for Congress before acting, Chairman Pai welcomed Congressional action that would direct some of the auction proceeds to address national priorities like rural broadband, closing the “digital divide,” and Next-Generation 911.

Commissioner Carr’s statement expressed “strong support” for the Chairman and what he termed the “right decision.” Commissioner O’Rielly was “incredibly excited” to see the C-Band draft circulated and the item moving forward at the February meeting, noting that he “still need[ed] to review the particulars.” No comments were posted by the two Democratic Commissioners.

The Chairman’s preview was silent on the technical details regarding protection of incumbents and other services, such those in adjacent bands, e.g., radio altimeters in the 4200-4400 MHz band, and the matter of whether the upper 200 megahertz of the C-band would be made available for point-to-multipoint, or P2MP, operations, as advanced by several tech companies and public interest groups. The draft report and order likely to be issued today will merit a close review from all interested stakeholders, and the Commission will continue to take ex parte meetings and receive submissions until the Sunshine Notice for the February 28 Open Meeting is issued, which is expected on February 21.

FCC to Address Public Safety Concerns at November Meeting Sun, 03 Nov 2019 04:00:16 -0500 The FCC plans to prohibit the use of Universal Service Fund (“USF”) support to purchase equipment or services from foreign entities that it determines pose national security risks at its next meeting scheduled for November 19, 2019. As we previously reported, the ban may severely impact participants in all federal USF programs and involve a costly “rip and replace” process to remove foreign-made equipment from domestic telecommunications networks. The FCC also expects to move forward on its heavily-anticipated E911 vertical accuracy (i.e., z-axis) proceeding and adopt new requirements for wireless carriers to better identify caller locations in multi-story buildings. Rounding out the major actions, the FCC anticipates proposing new rules for suspending and debarring entities from participating in USF and other funding programs; removing longstanding unbundling and resale requirements for certain telecommunications services; and widening the contribution base for the Internet Protocol Captioned Telephone Service (“IP CTS”) to include intrastate revenues.

The draft items cover the gamut of telecommunications issues, affecting everything from the construction of next-generation 5G networks to legacy intercarrier competition rules, and should be closely watched. You will find more details on the most significant November FCC meeting items after the break:

USF National Security Ban: The draft Order and Further Notice of Proposed Rulemaking seeks to fortify the United States’ communications infrastructure from potential foreign surveillance and denial of service attack and would prohibit the use of USF support to purchase any equipment or services provided by a “covered company” that the FCC determines poses a national security threat to the integrity of domestic communications networks. The initial ban only would apply prospectively, but would include spending related to any maintenance or upgrades to existing equipment and services. The FCC would preliminarily designate Chinese equipment manufactures Huawei Technologies Company and ZTE Corporation as covered companies and seek comment on whether the designation should be made permanent. The FCC also would establish a process to designate other covered companies in the future. In addition, the FCC would propose: (1) requiring all USF recipients to stop using existing equipment and services provided by covered companies and (2) creating a reimbursement program to offset the “reasonable” transition costs associated with this requirement. In order to determine the scope of this potential “rip and replace” project, USF recipients would be required to report to the FCC on whether they use equipment and services from covered companies and the estimated costs of transitioning to new suppliers.

E911 Vertical Location Accuracy Requirements: The draft Order and Further Notice of Proposed Rulemaking is designed to push carriers to better identify 911 callers’ locations within buildings and would adopt an E911 vertical location accuracy standard of +/- 3 meters for 80 percent of E911 calls from z-axis location capable handsets. The nationwide wireless carriers would be required to deploy z-axis location capable technology that meets the new standard in the 25 largest markets by April 3, 2021, and in the 50 largest markets by April 3, 2023. Non-nationwide wireless carriers would have an extra year to meet each of these deadlines. The FCC also would seek comment on tightening the E911 vertical location accuracy standard over time and whether carriers eventually should be obligated to report a caller’s floor number.

New Suspension and Debarment Rules: The draft Notice of Proposed Rulemaking would request input on whether the FCC should adopt new suspension and debarment rules to cover a wider range of misconduct, in accordance with federal guidelines adopted by many other federal agencies. The FCC’s current rules generally only allow the FCC to suspend and/or debar individuals from the USF programs after they are convicted or receive a civil judgment involving fraud or certain criminal offenses. The proposed rules would allow the FCC to suspend and/or debar individuals without a conviction or final judgment and for repeat violations of FCC rules, failures to pay regulatory fees, or other offenses “indicating a lack of business integrity.” The proposed rules would apply not only to USF participants, but also to participants in the Telecommunications Relay Service and National Deaf-Blind Equipment Distribution programs. Participants in these programs would be subject to new disclosure obligations and would be required to verify that they do not work with suspended or debarred entities. The FCC also plans to establish a system of reciprocity, in which entities suspended or debarred from participation in funding programs administered by other agencies would be similarly suspended or debarred from participating in the FCC programs. The FCC further asks whether it should be able to apply the new suspension and debarment rules retroactively to cover conduct occurring before their adoption, significantly increasing the potential liability for program participants.

Eliminating Unbundling/Resale Obligations: The draft Notice of Proposed Rulemaking proposes relieving incumbent local exchange carriers of their longstanding obligations to make certain network elements available on an unbundled basis and offer certain telecommunications services on a wholesale basis to competitive carriers. The draft item would address the few remaining unbundling and resale obligations left over from the Commission’s broad forbearance order adopted earlier this year. Specifically, the FCC would propose removing the unbundling requirements for: (1) DS1 and DS3 loops in competitive areas, with an exemption for DS1 loops providing residential broadband and telecommunications services in rural areas; (2) DS0 loops in urban census blocks; (3) narrowband voice-grade loops; and (4) dark fiber transport for wire centers within a half mile of alternative fiber. The FCC also would propose eliminating resale obligations for services offered in non-price cap incumbent carrier service areas. The FCC would argue that such unbundling and resale obligations are no longer necessary in light of increased competition. The FCC anticipates phasing in the reforms over a three-year period.

Expanding IP CTS Contribution Base: The draft Order would expand the contribution base for IP CTS, which provides call captioning for individuals who are deaf or hard of hearing, to include intrastate end-user revenues from contributing telecommunications carriers and VoIP providers. When the FCC initially authorized support for IP CTS, it decided as an “interim” measure to cover the service’s costs based only on interstate telecommunications revenues. The draft item would find that the interim funding mechanism unfairly burdens providers and users of interstate telecommunications services and is insufficient to address the overall decline in contributions. The FCC would note that the statute governing IP CTS provides it with broad authority to support captioning on intrastate as well as interstate calls and the Communication Act’s general reservation of state authority over intrastate communications does not apply in this instance. The FCC also would note that it does not expect the reforms to increase or otherwise affect the total contributions needed to support IP CTS.

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.

FCC Set to Commercialize Educational Broadband Service Portion of 2.5 GHz Band to Enable 5G Thu, 11 Jul 2019 22:32:00 -0400 At Wednesday’s July Open Meeting, the FCC approved a Report and Order (“Order”) to modify the regulatory framework and allocation plan for the 2496 – 2690 MHz (“2.5 GHz”) band—at 194 megahertz, the largest band of contiguous spectrum below 3 GHz. The objective of the Order is to make more mid-band spectrum available for commercial use and facilitate the development of 5G services—a key spectrum policy priority for this FCC and the Trump Administration. The Order will allocate unused spectrum in the band and remove educational use requirements to free it up for non-educational commercial entities.

The 2.5 GHz band is currently allocated to entities that hold licenses for Educational Broadband Service (“EBS”), Broadband Radio Service, and guard band channel use. For EBS, only entities that are “(1) accredited public and private educational institutions, (2) governmental organizations engaged in the formal education of enrolled students, and (3) nonprofit organizations whose purpose is educational” are permitted to hold licenses. The rules do, however, allow EBS licensees to lease excess capacity to non-educational organizations. Most licensees do so and Sprint has used such secondary market transactions to gain substantial spectrum holdings in the band. The rules place a number of special conditions on the use of the excess capacity lease option. In the Order, the FCC notes that EBS licenses only exist for half of the United States and the spectrum is largely unassigned in rural areas.

More countries are adopting band plans with a preference for mid-band allocation to commercial wireless due to better network coverage and capacity capabilities. In recent years, mid-band spectrum has received increased interest from U.S. wireless providers because of a desire to harmonize the U.S. band plan with key international counterparts. The Order will allocate the unused portions of the 2.5 GHz band for high-speed broadband wireless use with a priority window for Tribal entities to seek access to the band. Specifically, the FCC will designate a priority window for Tribal nations (available to educational entities as well as communications providers) to express interest in obtaining 2.5 GHz licenses for the purpose of providing service on rural Tribal lands. The priority window would grant an overlay license and a Tribal applicant would receive a geographic area license subject to protections for incumbent operations.

Following the Tribal priority window, other entities could participate in an auction for access to geographic overlay licenses in the remaining white spaces. Bidding credits will be available for entities that satisfy the definitions of small business and rural provider established in the Order. EBS licenses awarded through the auction will be subject to specific performance requirements depending on the specific service being offered.

The Order also amends the existing EBS license regulatory regime to allow for more flexible use to include the following measures:

  • elimination of restrictions for non-education use of EBS licenses for existing and new licensees to make the spectrum more appealing to commercial entities;
  • elimination of requirements that EBS licenses be used for an educational purpose; and
  • elimination of restrictions on leases for EBS licenses in section 27.1214 (except subsection (d)) and the cross-reference in section 1.9047 of the FCC’s rules.
Prior to the meeting, Commissioner Carr sent letters to some EBS licensees inquiring about whether they were fully complying with the license requirements, such as reserving at least 5% of capacity for specified educational uses, and expressed concern that a significant portion of the nonprofit revenues are being used for improper purposes like leadership salary and political donations. The Order includes a footnote reminding EBS licensees about their obligations under the current rules and directs the Wireless Telecommunications Bureau (“WTB”) and Enforcement Bureau to investigate the alleged violations and take appropriate action as necessary. In his separate statement, Commissioner Carr noted that his preference for higher buildout standards for existing licensees was not adopted but that higher standards could be adopted in a later pending proceeding related to adoption of wireless license standards for renewal beyond the initial term. Additionally, Commissioner O’Rielly, while supportive of the Order, emphasized the necessity of the performance requirements and put Tribal entities in particular on notice that any license received will be cancelled if the licensee doesn’t meet build-out requirements.

EBS licensees raised concerns about the direction of the Order, favoring commercial entities, and that the FCC was discounting the value presented by educational and nonprofit groups. Democratic Commissioners Rosenworcel and Starks both approved in part and dissented in part to the Order. Commissioner Rosenworcel expressed her preference for the unused licenses to be allocated by incentive auction with additional funds being used to address the homework gap, and Commissioner Starks expressed his concern over the Order’s impact on incumbent licensees and the future viability of the EBS program.

The effective date for the Order is as follows:

  • The Tribal priority window will open before unassigned EBS spectrum is made available more broadly for competitive bidding. The FCC directs WTB to establish procedures for the priority window through future Public Notices.
  • The effective date of the other rule changes in the Order will be six months from the date of publication in the Federal Register.

FCC Tees Up Mid- and High-Band Spectrum Auctions to Support 5G at July Open Meeting Mon, 24 Jun 2019 15:06:31 -0400 Continuing its push to free up spectrum to support next-generation 5G services, the FCC plans to move forward on auctions of both mid- and high-band spectrum for commercial mobile use at its next open meeting scheduled for July 10, 2019. First, the FCC would establish new licensing rules for the 2.496-2.690 GHz band (“2.5 GHz Band”) currently used for educational television services to facilitate the auction of the spectrum next year. The FCC contends that the 2.5 GHz Band, which represents the largest contiguous block of mid-band spectrum considered for auction to date, has largely gone unused and should be opened up for commercial use. Second, the FCC would adopt application and bidding procedures for the auction of spectrum at 37.6-38.6 GHz (“Upper 37 GHz Band”), 38.6 GHz-40.0 GHz (“39 GHz Band”), and 47.2-48.2 GHz (“47 GHz Band”). This auction would be the FCC’s third auction of high-band spectrum, following the recent auctions of 24 GHz band and 28 GHz band spectrum. As we previously noted, this auction is complicated by the presence of incumbent licensees in the 39 GHz Band, who would be offered incentive payments to accept modified licenses or leave the Band under the FCC’s plan. Rounding out the major July actions, the FCC expects to seek comment on establishing a three-year, $100 million universal service pilot program to support telehealth services as well as eliminate pricing regulation and other restrictions on certain legacy data transport services offered by price cap carriers.

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

Mid-Band Spectrum Auction: The draft Order would set the stage for a 2.5 GHz Band auction by eliminating rules that prevented non-educational institutions from obtaining licenses, allowing commercial providers to enter the Band. New licensees would no longer be required to use the spectrum for educational purposes and would possess more flexibility in leasing spectrum to others. The auction would not affect existing contracts or leases for 2.5 GHz Band spectrum, which would remain in place. The FCC plans to provide rural Tribal organizations with a priority filing window for new 2.5 GHz Band licenses, but would not implement a similar window for educational institutions. After the close of the priority filing window, the FCC would auction the remaining 2.5 GHz Band spectrum in 100 megahertz or 16.5 megahertz blocks at the county level.

High-Band Spectrum Auction: The draft Public Notice would establish rules for the auction of Upper 37 GHz Band, 39 GHz Band, and 47 GHz Band spectrum for commercial mobile use. Auction participants would first bid on generic spectrum blocks covering partial economic areas. The bid amounts in this round would determine the size of the incentive payments received by incumbent 39 GHz Band licensees. Following the generic bidding round, auction participants would bid on frequency-specific spectrum blocks, with the aim of creating contiguous block assignments. The FCC plans to provide bidding credits to small businesses and rural service providers to encourage auction participation. The FCC would accept applications to participate in the auction beginning August 2, 2019, with the auction scheduled to start on December 10, 2019.

Connected Care Pilot Program: The draft Notice of Proposed Rulemaking (“NPRM”) would seek input on the eligibility requirements, application processes, goals, and evaluation metrics for the proposed Connected Care Pilot Program. The FCC anticipates operating the Connected Care Pilot Program as a new program within the Universal Service Fund (“USF”), supported by an additional assessment on telecommunications providers to be added to the contribution factor that will slightly increase USF contributions. The FCC therefore says it does not plan on diverting resources from existing USF programs to support the Connected Care Pilot Program. Moreover, in a reversal from its initial inquiry last year on the Connected Care Pilot Program, the FCC is no longer considering restricting program participation only to facilities-based eligible telecommunications carriers (“ETCs”); rather, service providers do not even have to be ETCs. Comments on the NPRM will be due 30 days after Federal Register publication of the NPRM, with reply comments due 30 days later.

Transport Services Reform: The draft Orders would relieve price cap carriers from pricing regulation of their lower-speed, legacy transport services known as Time Division Multiplexing (“TDM”) transport. The FCC would find that sufficient competition exists in the provision of TDM transport services to justify eliminating the pricing controls. Although the FCC already voted to eliminate TDM transport service pricing controls in 2017, a federal court subsequently returned the issue to the agency to allow for full notice and comment on the issue. The FCC also would forbear from enforcing its unbundling requirements for legacy transport services known as DS1 and DS3 transport, subject to certain conditions and a multi-year transition period. The forbearance would free price cap carriers from providing such legacy transport services based on regulated rates.

New Podcast: Tuning into Spectrum Thu, 02 May 2019 16:15:19 -0400 Our "Tuning into Spectrum" podcast series takes a close look at hot topics and issues in radio spectrum. Thanks to technological advancements, a major development in recent years has been the growing prospects for innovative use of higher spectrum bands. This episode discusses how the FCC’s heightened focus on millimeter wave spectrum. They discuss the connection to 5G, potential impacts on federal meteorological and passive services, the use of an incentive auction in a new setting, innovative proposals for spectrum access, and more. Look out for additional spectrum updates in the coming months in this continuously evolving environment.

To listen to this episode and subscribe, please click here.

FCC Seeks Further Information About Satellite Use of C-Band from FSS Space and Earth Station Operators Mon, 29 Apr 2019 17:23:40 -0400 The FCC is requiring fixed-satellite service (“FSS”) operators to provide the Commission with information about their current use of the 3.7-4.2 GHz band (“C-Band”) by May 28, 2019, according to a Public Notice released jointly earlier this month by the FCC’s International Bureau, Wireless Bureau, and Office of Engineering and Technology. The FCC will use the information to consider potential rules that allow new commercial terrestrial services in the Band while protecting incumbent satellite and earth station operators. The Band is currently allocated to FSS and the fixed service, but the Commission has proposed adding a mobile, except aeronautical mobile, allocation, which would allow commercial wireless providers to operate 5G services in the Band. The amount of spectrum to be reallocated or shared, the extent of protection for incumbents, and the means of protection for incumbents are all, as yet, undetermined, and they are topics of substantial debate among stakeholders.

Unless exempt, licensed and registered FSS earth station operators in the Band, including operators of temporary-fixed or transportable earth stations (those remaining at a location less than 6 months), must provide a signed certification, in a form prescribed in the Public Notice, of the accuracy of all information reflected on their licenses or registrations in the International Bureau Filing System (“IBFS”). Filers may seek confidential treatment. Earth station operators are exempt from this filing requirement if they filed for new or modified licenses or registrations between April 19 and October 31, 2018, using the processes set up by the FCC as an exception to the licensing freeze the FCC issued on April 19, 2018.

The Commission’s requirement that these pre-existing licenses or registered earth station operators will allow the FCC to update its information on those who did not license or register after the April 19, 2018, date. Approximately 15,000 took advantage of that earlier opportunity.

The foregoing exemption does not apply to temporary-fixed or transportable earth station operators.

Such operators that are licensed or registered must provide the FCC with the following information regardless of when they were licensed or registered:

  • Call sign (or IBFS file number if they filed a registration between April 19 and October 31, 2018, and the registration is pending);
  • Address where the equipment is typically stored;
  • Area within which the equipment is typically used;
  • How often the equipment is used and the duration of such use;
  • Number of transponders typically used in the 3.7-4.2 GHz band and extent of use on both the uplink and downlink; and
  • Licensee/registrant and POC information.
All earth station operators would benefit from being reminded that they must update their information in IBFS if there is a change in contact information or any of the station’s operational parameters.

The Commission also seeks information from satellite operators. Operators with existing FSS space station licenses or market entry grants that currently serve or are authorized to serve United States markets must provide the following information:

  • Satellite call sign, name, and orbital location;
  • Expected end-of-life for satellite;
  • Each C-band satellite planned for launch to serve the United States market, with the approximate date of the launch anda note on whether the satellite is a replacement, whether or not the there is a currently pending application in IBFS;
  • Center frequency and bandwidth of the Telemetry Tracking and Command (“TT&C”) beam(s); and
  • Call sign and geographic location (using NAD83 coordinates) of each TT&C receive site.
Additionally, for each transponder on each operational satellite serving United States customers using the C-Band, space station operators must provide the following:
  • The frequency range of the transponder and the transponder number for the most recent month;
  • The total capacity (megahertz) and in terms of the number of megahertz on each transponder that are currently under contract for the most recent month and for one month in 2016;
  • For each day in March 2019, the average percentage of each transponder’s capacity (megahertz) utilized and the maximum percentage of capacity utilized on that day (parties may supplement this required daily data with historical trend data over recent months up to three years to show utilization variances, but they must also provide the date range for which the data was collected); and
  • For all data reported regarding capacity under contract and capacity utilization, the percentage, if any, for customers outside of the United States for the most recent month.
The Commission originally adopted the information collection requirements in a July 2018 Order, but the effectiveness of the requirements were suspended pending approval from the Office of Management and Budget, which was granted on January 28, 2019.

As issues continue to play out in the FCC’s 3.7-4.2 GHz proceeding, how the Commission ultimately proposes to protect existing licensed and registered Earth stations and related satellites will be closely watched and lobbied intensely.