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

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

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

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

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

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

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

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

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

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

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

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

Background:

Use of spectrum above 95 GHz is largely uncharted territory. Apart from several minor authorizations for amateur radio and industrial, scientific, and medical (“ISM”) operations under Part 18, all non-Federal operations in these frequency ranges have only been permitted by the FCC via experimental licenses. Various parts of this extremely broad range of bands are used by radio astronomy and other passive services.

The Commission has used its Spectrum Frontiers proceeding to gauge interest in spectrum above 95 GHz. While several parties filed comments in that proceeding touting a range of both communications and non-communications applications services (including spectroscopy, imaging, and sensing), the Commission took no meaningful steps toward making the band more available. The Draft NPRM would seek comment on (I) possible licensed operations in various frequency ranges; (II) making particular frequency bands available for unlicensed use; and (III) creating a new framework for experimental licenses for spectrum above 95 GHz.

I. Licensed Allocations

The Draft NPRM would propose that rules in these bands may be based on the light-licensing fixed point-to-point rules that currently apply to the 70/80/90 GHz bands which provide for:

• Non-exclusive nationwide licenses in any portion of the bands in question with 10-year terms
• Registration of links through a system maintained by a database manager
• A twelve-month construction requirement (after registration)
• Interference protection based on registration priority

As written, the Draft NPRM requests feedback on whether to permit fixed point-to-multipoint systems in addition to fixed point-to-point links in these bands, and on whether there is any interest in deploying mobile services in spectrum above 95 GHz.

Noting that almost all of the bands in the 95-275 GHz range that would be under consideration are shared bands, the Draft NPRM devotes considerable space to raising issues regarding shared operation of licensed fixed links with other allocated uses, as applicable, including not only FSS and MSS, but radio astronomy, Earth Exploration Satellite Service (“EESS”), the Space Research Service (“SRS”), the Inter-Satellite Service (“ISS”), radiolocation, and radionavigation, as well as sharing between Federal and non-Federal users.

II. Unlicensed Operations

This anticipated proposal comes in the wake of the Commission declining in the November 2017 Spectrum Frontiers orders that, in general, turned a deaf ear to please by Microsoft and others to increase unlicensed opportunities in the range between 24 and 86 GHz. In contrast with that action, the Draft NPRM states that “[p]otential future [unlicensed] applications in these bands [might]include ultra-high definition video, and high-speed data transmission, such as temporary fiber optic line replacement, chip-to-chip communication within computer equipment, and replacement of computer data cables in data centers with wireless links.”

Further, given that these frequencies enable certain non-communications applications of potential interest to industry and research, such as emerging terahertz spectroscopy applications, the Draft NPRM includes queries whether unlicensed operations more properly fall within the Part 18 ISM rules, and what changes in that rule part may be appropriate to accommodate these uses.

III. Experimental Licenses

• Greater Marketing Flexibility by allowing direct sales of experimental equipment used in market trials to trial participants (whereas existing ERS rules only allow limited equipment sales to other ERS licensees during market trials).
• Broader Geographic Scope by giving experimental licensees “substantial flexibility to conduct ... experiments over a wide geographic area ... and adapt their program of experimentation as needed.”
• Longer License Terms namely ten-year term instead of the two- and five-year terms currently available for other ERS licenses.

The FCC is tentatively scheduled to vote on the draft item during the Open Commission Meeting scheduled for February 22. Assuming the item is approved, the Draft NPRM suggests that comments will be due 30 days (and reply comments 45 days) after the date of publication in the Federal Register. The mere issuance of the Draft NPRM is welcome news for a number of equipment and service developers who have been pushing for greater access to these frequency ranges and, if the Commission’s expectations reflected in the draft item are fulfilled, may give others reason to pursue plans that have not been fully ignited because of the lack of formal encouragement to develop a regulatory framework, and greater certainty, in these bands.

The FCC order approving the Petition (the “OneWeb Approval Order”) characterizes the grant as “the first of its kind for a new generation of large… NGSO systems” which the Commission hopes will facilitate “high-speed, affordable broadband connectivity” nationwide. The FCC’s grant was conditioned on, among other things, ITU coordination, power limits, avoidance of in-line interference, orbital debris mitigation, the outcome of pending and future rulemakings, and satisfaction of bond and milestone requirements. The OneWeb grant remains subject to the outcomes of several other pending proceedings (as well as any future FCC rules) and the requirement that OneWeb will share spectrum with other NGSO systems the Commission approves in the same spectrum bands and other users of the spectrum. The OneWeb Approval Order makes clear that any earth station applications will be subject to a separate filing and review cycle.

Background

On July 15, 2016, the FCC accepted OneWeb’s Petition for U.S. market access for its proposed NGSO system in the 10.7-12.7 GHz, 14-14.5 GHz, 17.8-18.6 GHz, 18.8-19.3 GHz, 27.5-29.1 GHz, and 29.5-30 GHz frequency bands and initiated a processing round inviting other prospective operators of NGSO-like systems to file applications or, if licensed by another country, petitions for access to the aforementioned bands. In total, eleven companies set forth NGSO proposals in the OneWeb processing round. Those applications and petitions for declaratory ruling remain pending and were not affected by adoption of the OneWeb Approval Order. Ten of the eleven processing round applications and petitions were accepted for filing on May 26, 2017, triggering a cycle for comments and oppositions. A number of comments and petitions to deny these additional applications were filed this past Monday.

On November 1, 2016, the FCC initiated a similar processing round for NGSO-like systems in other bands when it accepted for filing Boeing’s application to launch and operate a 2,956 NGSO constellation in the 37.5-40.0 GHz, 40.0-42.0 GHz, 47.2-50.2 GHz, and 50.4-51.4 GHz bands. The Commission invited additional applications for NGSO-like systems in the bands sought by Boeing. Ultimately, six companies participated in the Boeing processing round. Most recently, on June 16, 2017, the FCC accepted for filing several NGSO-like applications for operations in the Q and V bands.

The Terms of OneWeb’s Grant

In the OneWeb Approval Order, the Commission found that granting OneWeb’s Petition is in the public interest, subject to various considerations discussed below.

The FCC granted OneWeb access to the 12.2-12.7 GHz band, but noted that OneWeb assumes the risk that the Commission could make changes affecting the status of its access. Of particular note, changes to OneWeb’s terms of access could follow future action on a pending petition for rulemaking filed by the Multichannel Video Distribution and Data Service (“MVDDS”) Coalition. The MVDDS Coalition has asked the Commission to liberalize MVDDS rules in the 12.2-12.7 GHz band to permit mobile operations in addition to fixed. In conjunction with that, the Coalition asked the FCC to modify or eliminate the present Fixed Satellite Service (“FSS”) co-primary designation in the band for NGSO systems.

The FCC granted OneWeb two waivers for operations on a secondary non-interference basis in portions of the 17.8-18.6 GHz range. Specifically, OneWeb can operate in the 17.8-18.3 GHz band on a secondary basis to primary terrestrial Fixed services subject to international power flux-density (“PFD”) limits, and in the 18.3-18.6 GHz band on a secondary basis to FSS geostationary satellite orbit (“GSO”) systems subject to internationally adopted equivalent power flux-density (“EPFD”) limits.

Additionally, the Commission waived a requirement that OneWeb split spectrum access with other NGSOs in the 17.8-18.6 GHz, 27.5-28.6 GHz, and 29.5-30 GHz bands. In other bands, the FCC allows NGSOs to share spectrum by coordinating through avoidance of in-line interference events. The FCC will allow OneWeb and other NGSOs to operate in the same frequencies in the 17.8-18.6 GHz, 27.5-28.6 GHz, and 29.5-30 GHz bands while taking advantage of directional antennas and other methods to avoid in-line interference events, which is already the rule in the 10.7-12.7 GHz, 14-14.5 GHz, and 18.8-19.3 GHz bands in which OneWeb received approval.

The Commission also clarified that OneWeb and/or its customers would have to separately apply for authority to operate earth stations in the United States. OneWeb is also subject to ITU coordination requirements across all bands it will operate in, and must adhere to radio astronomy coordination requirements in the 10.7-11.7 GHz and 14.47-14.5 GHz bands.

Finally, in the OneWeb Approval Order, the FCC declined to incorporate international EPFD limits into the Commission’s rules for the 27.5-28.6 GHz and 29.5-30 GHz bands. The agency noted that such a determination is before the Commission in the pending NGSO FSS rulemaking proceeding, and would be better addressed in that context.

Potential Impact

The approval of OneWeb’s NGSO Petition is an early important step in what appears to be a growing satellite industry push to offer broadband from low earth orbit (“LEO”) (and/or medium earth orbit (“MEO”). Proponents of such systems frequently claim that LEO NGSO systems will offer lower latency broadband services than GSO systems, since the former are much closer to earth’s surface. NGSO proponents also contend that these constellations will extend broadband coverage and access in rural and remote areas that they claim have not been covered by terrestrial service providers. However, proponents of terrestrial mobile broadband services have expressed doubts about the satellite advocates’ claims, indicating that commercial wireless systems will also seek to serve such areas and contending further that NGSO systems may not make use of spectrum with the same efficiency as terrestrial solutions.

While the NGSO applications make promises of enhanced connectivity, historically, satellite endeavors of this nature have proven daunting. Many prior attempts to implement broadband NGSO constellations in low earth orbit have been made and not infrequently have failed to meet objectives. Perhaps reflecting that history, Commissioner Michael O’Rielly took a guardedly optimistic view of NGSO prospects in his statement accompanying the one web approval order; “[w]ill some of these systems come to fruition? That seems likely. Will all of these systems be launched? That seems like a stretch.” Only time will tell whether the efforts of OneWeb and its contemporaries, to the extent they are given the green light by the Commission, will fare better. For now, it remains to be seen when and how the FCC will decide on the many other pending NGSO applications.

Commissioner O'Rielly’s comments also raised some concerns with the Commission’s approach to spectrum management as reflected by the OneWeb grant. He seems to welcome a more comprehensive decision-making approach to account for issues raised by and objectives of all stakeholders in a given band. He appeared frustrated with the Commission continuing to address additional regulatory frameworks of spectrum bands “on a piecemeal basis.” With the many open proceedings affecting the mmW bands, it remains to be seen whether such an approach might gain traction with other Commission members.