CommLaw Monitor https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor News and analysis from Kelley Drye’s communications practice group Wed, 03 Jul 2024 03:45:23 -0400 60 hourly 1 C-Band Earth Stations: The FCC Made the List; It’s Worth Checking It Twice https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/c-band-earth-stations-the-fcc-made-the-list-its-worth-checking-it-twice https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/c-band-earth-stations-the-fcc-made-the-list-its-worth-checking-it-twice Tue, 07 Jul 2020 21:24:56 -0400 Incumbent earth stations operating in the 3700-4000 MHz range are entitled to have eligible space station operators provide a turnkey solution to transition them out of the band to the upper 200 megahertz of the 3.7-4.2 GHz Band. All of an earth station’s actual, reasonable, and necessary transition costs, for such transitions are reimbursable. As an alternative to having the space station operator conduct the transition, earth station operators may choose to accept a pre-determined per-earth station lump sum – still being worked on by the Federal Communications Commission’s (“FCC’s”) Wireless Telecommunications Bureau – for all their earth stations as sole compensation for moving out of the band themselves regardless of what solution is pursued after the transition, including moving to another band or off the radiofrequency spectrum altogether. (Previously, we covered the Commission’s schedule for the C-Band transition in detail.) The trick, however, is that, to qualify for reimbursement or the lump sum option, the earth stations must be “incumbent.” On Monday, July 6, 2020, the International Bureau (“Bureau”) issued a preliminary list of incumbent earth stations that would qualify for reimbursement or the lump sum. The Bureau, in the accompanying Public Notice, provided ten (10) days for interested persons to comment on the list, until Thursday, July 16.

The Bureau intends for the list to be complete. Earth station owners and operators will want to check that list closely to ensure their qualifying earth stations are listed, and all the details are accurate. Otherwise, they may miss compensation to which they are entitled. To reprise, incumbent earth stations must meet the following criteria:

  1. Be operational as of the Commission’s April 18, 2018, filing freeze and remain operational today.
  2. Be registered (receive-only) or licensed (transmit/receive) in the 3700-4200 MHz band (for those stations not registered or licensed prior to April 18, 2018, registration or license applications must have been filed by November 7, 2018).
  3. For those stations registered or licensed prior to April 18, 2018, the registrant or licensee must have done one of the following:

a. Certified the accuracy of the registration/license information in the International Bureau Filing System (“IBFS”) by May 28, 2019;

b. Filed a modification/update to the registration or license in IBFS during the April 19 to November 7, 2018 filing window; or

c. Filed a timely renewal application by May 28, 2019.

It is worth noting that the Bureau continues to process some earth station registration and license applications that were timely filed over two years ago before the earth station freeze. The Bureau’s list should include earth stations that are the subject of those pending applications, and those stations’ status as “incumbent” is conditioned upon an ultimate grant of the pending applications. Stations not meeting the criteria for incumbent status, according to the Bureau, are not listed, including earth stations whose dismissal is not yet final.

If earth station operators or owners review the list (which comes with instructions) and find errors or omissions, comments seeking to correct the list should be filed in GN Docket No. 20-205 (see the Public Notice for more guidance) reference the existing file number(s) in IBFS. If everything in the list for a given earth station is correct and complete, an earth station registrant or licensee need not file anything with the Commission at this time.

The Public Notice reminds interested parties that they may not submit new filings in IBFS in order to attempt to qualify an earth station for incumbent status. If the above criteria for incumbent earth stations are not already satisfied for a given station, that cannot be rectified now, unfortunately. Similarly, the FCC clarifies that current licensees and registrants cannot at this time make filings to add existing antennas to a registration or license or change an earth station location, although minor corrections (for example, fixing the site address and/or GPS coordinates of an existing earth station location) are permissible.

In parallel with reviewing the Bureau’s list, earth station operators and owners may want to review the eligible space station operators’ draft transition plans which were filed in the FCC’s GN Docket No. 20-173 on June 19, 2020. Comments on those plans from the public are being formally accepted by the Commission through July 13, 2020. The space station operators need to finalize those plans by August 14, 2020.

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Scheduling the Race to the “C-Band” Auction https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/scheduling-the-race-to-the-c-band-auction https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/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.

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FCC Postponing 3.5 GHz Auction on Account of COVID-19; Agency Hopes to Keep 3.7-4.2 GHz Auction on Track https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-postponing-3-5-ghz-auction-on-account-of-covid-19-agency-hopes-to-keep-3-7-4-2-ghz-auction-on-track https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/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.

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Podcast: C-Band Reform https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/podcast-c-band-reform https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/podcast-c-band-reform Thu, 13 Feb 2020 16:22:11 -0500 Following a recent episode on the FCC’s C-Band Proceeding addressing use of the 3.7-4.2 GHz spectrum range, Partner Chip Yorkgitis is back to discuss the recently released draft Report and Order, which is expected to be adopted at the FCC's February 28th meeting. The Order would transition the use of the C-Band to make the 280 megahertz from 3.7 – 3.98 GHz available for flexible use through an auction to be held this year.

Click here to listen to the episode, and here for more in our “Tuning into Spectrum” series and other updates from Kelley Drye’s Full Spectrum podcast.

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Pai Offers Highlights of His 3.7-4.2 GHz Band Proposal; Particulars Presently Forthcoming https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/pai-offers-highlights-of-his-3-7-4-2-ghz-band-proposal-particulars-presently-forthcoming https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/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.

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Podcast: C-Band Update https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/podcast-c-band-update https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/podcast-c-band-update Thu, 06 Feb 2020 16:11:50 -0500 Our "Tuning into Spectrum" podcast series takes a close look at hot topics and issues in radio spectrum. Recently, in a letter to Senator Kennedy (R-LA), Chairman Pai stated that he intends to conduct a public auction of the 3.7-4.2 GHz spectrum range (commonly referred to as the C-Band) that would clear 280 megahertz for flexible use to be allocated by auction and allot 20 megahertz to a guard band. In this episode, we discuss the issues that remain unresolved, including the impact on satellite operators and MVPDs, technical issues, a possible transition to fiber in some areas, and C-Band-related legislation. Click here to listen to the episode, and here for more in our "Tuning into Spectrum" series and other updates from Kelley Drye's Full Spectrum podcast.

Since the recording of this episode, it now appears that a C-Band item will be on the agenda for the FCC’s next Open Meeting on February 28, 2020.

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FCC Seeks Further Information About Satellite Use of C-Band from FSS Space and Earth Station Operators https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-seeks-further-information-about-satellite-use-of-c-band-from-fss-space-and-earth-station-operators https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/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.

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August 2017 FCC Meeting Recap: FCC Commences Major Study of Spectrum Management Issues Involving “Mid-Band” Frequencies https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/august-2017-fcc-meeting-recap-fcc-commences-major-study-of-spectrum-management-issues-involving-mid-band-frequencies https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/august-2017-fcc-meeting-recap-fcc-commences-major-study-of-spectrum-management-issues-involving-mid-band-frequencies Mon, 14 Aug 2017 21:14:41 -0400 At its August Open Meeting, the Federal Communications Commission (“Commission” or “FCC”) unanimously initiated a major inquiry proceeding into what it labels “mid-band spectrum,” namely the frequencies between 3.7 GHz and 24 GHz. The proceeding has major potential spectrum management ramifications for the coming years as the record developed could serve as a catalyst for future allocation and rule proceedings in a number of bands. Recall that in late 2014, the Commission launched its Spectrum Frontiers inquiry proceeding into spectrum above 24 GHz, which led to an order adopting rules for flexible licensed and unlicensed use of almost eleven (11) gigahertz of spectrum in July 2016, and a further notice which may lead to as much as another eighteen (18) gigahertz becoming available in the near future.

In adopting its Notice of Inquiry (“NOI”), the Commission cited the need to meet “future demand” and the desire to “evaluate spectrum bands in all ranges.” According to the Commission, in extremely general terms given the more than six-fold increase in wavelength between the bottom and top of the so-called “mid-band” range and the many pre-existing allocations throughout the range, these bands have better propagation characteristics (at least in some regards) than higher frequencies and hold out the promise for greater channel bandwidths than lower frequencies.

The NOI seeks information on three specific bands – the 3.7-4.2 GHz, 5.925-6.425 GHz, and 6.425-7.125 GHz bands – but also asks interested parties to identify other non-Federal frequencies in the mid-band range that may be suitable for expanded flexible use, including wireless broadband, on both a licensed and unlicensed basis. The NOI suggests commenters – both prospective new entrants and incumbent users – focus on bands with exclusive non-Federal allocations without ignoring those with shared Federal and non-Federal allocations. Given the existing uses in the three specifically identified bands, the inquiries about potential new uses can be expected to generate some contentious debate – indeed, intensify debates which have already begun – about the best ways to manage these bands going forward.

3.7-4.2 GHz

The 3.7-4.2 GHz band, which is already used by several groups of incumbents, is subject to several recent competing proposals. The band is currently allocated in the United States exclusively for non-federal use. Geostationary orbit satellite systems (“GSOs”) (namely, Fixed-Satellite Service (“FSS”) (space-to-Earth)) and Fixed Services are co-primary in this band. The predominant GSO uses are media broadcast and communications backhaul. Although historically the band has been used by the Fixed Services for similar functions, over time, carriers have turned to alternative solutions, resulting in what the NOI calls a “steep decline” in Fixed Services use of the band. This past October, the Fixed Wireless Communications Coalition (“FWCC”) filed a petition for rulemaking seeking with the Commission to foster increased use of the 3.7-4.2 GHz band by the Fixed Services, which the Commission put out for public comment late last year.

The Commission invites ideas how existing service rules governing GSO FSS and Fixed Services could be modified to further promote flexible use in this band, stimulate investment, and encourage more intensive deployment. In recent months, the 3.7-4.2 GHz band has drawn interest from other prospective users ranging from commercial mobile carriers, equipment manufacturers, Wireless ISPs, and the Wi-Fi community leading to other proposals. An ad hoc coalition of equipment manufacturers and mobile carriers seek access to the 3.7-4.2 GHz band for licensed mobile services (and to the 5.925-7.125 GHz band for unlicensed usage). They still have yet to formally file their petition for rulemaking. In a blog post published on the FCC’s website on July 10, Commissioner Mike O’Rielly expressed support for the ad hoc proposal.

The 3.7-4.2 GHz band is adjacent to the 3.55-3.7 GHz Citizens Broadband Radio Service (“CBRS”) band, aka the 3.5 GHz band, which makes it particularly attractive to prospective licensees also interested in some of the CBRS spectrum. Two petitions for rulemaking, by CTIA and T-Mobile, for liberalization of certain licensing rules in the 3.5 GHz CBRS band to make operations in that spectrum more attractive to investors and deployment friendly were recently put on public notice. Proponents smell an opportunity for a larger contiguous band which could bring equipment costs down and harmonize with international initiative in this same portion of the radio frequency spectrum.

In June, another group, the Broadband Access Coalition (“BAC”), filed a petition for rulemaking encouraging the Commission to create a new licensed, point-to-multipoint (“P2MP”) fixed wireless service in the 3.7-4.2 GHz band. BAC is comprised of wireless ISPs, educational interests (e.g. the American Library Association), and technology advocacy organizations (e.g. Public Knowledge). Under the BAC proposal, spectrum in the 3.7-4.2 GHz band would be licensed through the FCC’s Part 101 Operational Fixed Microwave rules rather than via auction.

5.925-6.425 GHz

Like the 3.7-4.2 GHz band, the 5.925-6.425 GHz band is allocated in the U.S. only for non-Federal use on a primary basis for FSS (Earth-to-space) and Fixed Service operation. Unlike the first band, the 5.925-6.425 GHz band is heavily utilized by Fixed Service licensees “support[ing] a variety of critical services such as public safety (including backhaul for police and fire vehicle dispatch), coordination of railroad train movements, control of natural gas and oil pipelines, regulation of electric grids, and backhaul for commercial wireless traffic.”

The NOI asks for input on potential unlicensed use of the 5.925-6.425 GHz band, especially how it might be combined with operations in nearby spectrum designated for Unlicensed National Information Infrastructure (“U-NII”). Perhaps U-NII devices in the 5.15-5.35 GHz and 5.47-5.725 GHz bands, the NOI muses, could use the 5.925-6.425 GHz band as well to achieve wider channel bandwidths and higher data rates. But the NOI is also open to possible licensed wireless broadband usage, including possible paired use with the 3.7-4.2 GHz band that coexists with existing categories of Fixed Services licensees and transmitting satellite earth stations. The Commission also inquires about whether there would be value in pairing this band with the 3.7-4.2 GHz band.

6.425-7.125 GHz

The 6.425-7.125 GHz band is currently domestically allocated for non-Federal use only for a number of services, namely Fixed and Mobile Services and FSS, none of which currently has access to the entire band. The Commission reveals that the FSS usage is less than in the band just described above, whereas the Fixed and Mobile Services include Broadcast Auxiliary Services (“BAS”), Cable Television Radio Services (“CARS”), and Part 101 Operational Fixed Microwave operations. The Commission observes that “[t]he Fixed Services and BAS operations in these bands support a variety of critical services such as public safety (including police and fire vehicle dispatch), coordination of railroad train movements, control of natural gas and oil pipelines, regulation of electric grids, backhaul for wireless traffic, television studio-transmitter links (“STLs”), television relay, and television translator relay stations.” Yet, at the same time, the FCC sees “the potential for more intensive [fixed] or mobile use” of the band, especially since none of the current allocations span the entire band individually, while there is already overlap in some portions of the band. The Commission’s focus appears to be on taking the temperature for potential sharing on a flexible basis between mobile uses and incumbent operations, rather than on transplanting current FSS, FS, and mobile users of the band.

Other Potential Bands for Flexible Wireless Services

In addition to the bands discussed above, the Commission invites comment on “other potential opportunities for expanded flexible broadband use, on a licensed or unlicensed basis, particularly in non-Federal and shared bands between 3.7 and 24 GHz.” The FCC wants details, asking commenters to focus on the circumstances they would expect to encounter in the bands they identify, such as deployment costs, the required technology, the desired timeframe for licensing and initiation of service, and methods for balancing the needs for licensed and unlicensed access. The NOI also seeks to focus attention on current non-Federal users of any candidate bands, the intensity of such uses, anticipated growth of such uses, and options for coexisting with or relocating them. The Commission suggests it will give priority to requests which target exclusive non-Federal bands and request input from both prospective entrants and existing incumbents. This part of the NOI, while not focused on specific bands, is prospectively a valuable opportunity for parties developing innovative flexible use services in the “mid band” spectrum to grab the regulator’s attention and potentially influence the scope and nature of subsequent rulemaking proceedings.

The Commission also encourages parties to explain what (if any) service rules applicable in the existing bands between 3.7 and 24 GHz could be modified or eliminated to promote more intensive and efficient non-federal use of other spectrum, including sharing. Again, the Commission does not hide its apparent intentions to manage the spectrum through the “mid band” range, if possible, in a way to promote innovation and flexible use.

Finally, the Commission invites general or band-specific feedback on a variety of significant spectrum management issues: how (and what) emerging technologies can improve spectrum utilization, whether incentive auctions should be used in other bands, what opportunities exist to relocate non-Federal incumbent users, and what are appropriate “long-term strategies” for promoting flexible use in non-Federal shared bands between 3.7 and 24 GHz.

Comments on the NOI are due on October 2, 2017, and reply comments on November 1, 2017 in Docket No. 17-183.

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