If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group. For more information on other aspects of the federal and state response to the COVID-19 pandemic, as well as labor and employment and other issues, please visit Kelley Drye’s COVID-19 Response Resource Center.

FCC Establishes the COVID-19 Telehealth Program

On April 2, 2020, the FCC issued a Report and Order (FCC-20-44) establishing the COVID-19 Telehealth Program. The COVID-19 Telehealth Program will provide $200 million in funding, appropriated by Congress as part of the CARES Act, to help health care providers provide connected care services to patients at their homes or mobile locations. The COVID-19 Telehealth Program will provide immediate support to eligible health care providers responding to the COVID-19 pandemic by fully funding telecommunications services, information services, and devices purchased on or after March 13, 2020 until the program’s funds have been expended or the COVID-19 pandemic has ended. The COVID-19 Telehealth Program represents the FCC’s most significant action yet to ensure telehealth services remain affordable and available during the crisis.

On April 8, 2020, the Wireline Competition Bureau (“WCB”) released guidance on the COVID-19 Telehealth applications process. The barriers to funding are relatively low. There are three steps interested providers should take immediately to prepare to apply for the COVID-19 Telehealth Program: (1) obtain an eligibility determination from the Universal Service Administrative Company (“USAC”); (2) obtain an FCC Registration Number (“FRN”); and (3) register with the System for Award Management. The WCB recommends that potential applicants undertake these steps now to apply for the early stages of funding.

On April 10, 2020, the WCB announced via Public Notice (DA 20-403) that it will begin to accept applications for the COVID-19 Telehealth Program beginning today, April 13, 2020 at 12:00 PM ET. Applications for the program may be filed through a dedicated application portal, available on the COVID-19 Telehealth Program page: www.fcc.gov/covid19telehealth. The WCB will accept applications on a rolling basis. To assist applicants in preparing their applications, the WCB will hold a webinar today, April 13, 2020 at 11:00 AM ET, which also will be available on the COVID-19 Telehealth Program page: www.fcc.gov/covid19telehealth. The presentation will assist interested parties in navigating the application portal and provide answers to frequently asked questions regarding the COVID-19 Telehealth Program’s application process. The webinar will remain publicly available for viewing.

FCC Adopts Connected Care Pilot Program

On April 2, 2020, in the same Report and Order (FCC 20-44) establishing the COVID-19 Telehealth program, the FCC adopted the Connected Care Pilot program. This three-year Pilot Program will provide universal service support to help defray certain health care provider costs incurred in delivering connected care services, with a primary focus on services aimed at low-income or veteran patients. The FCC will support selected pilot projects to help health care providers improve health outcomes and reduce health care costs, thereby supporting efforts to advance connected care initiatives. The Pilot Program also would study how connected care could become a permanent part of the Universal Service Fund. All eligible nonprofit and public health care providers that fall within the statutory categories under section 254(h)(7)(B) of the Communications Act, regardless of whether they are non-rural or rural, can apply for funding under the Pilot Program.

FCC Extends E-Rate Program Deadlines

On April 1, 2020, the WCB granted extensions of key deadlines for participants in the Schools and Libraries (or E-Rate) program (DA 20-364). Specifically, the Bureau waived the service implementation deadline for special construction projects for all funding year 2019 applicants and extended the deadline for funding year 2020 applicants by one year (from June 30, 2020 to June 30, 2021). Under the FCC’s rules, applicants normally must complete special construction projects and the network must be in use by June 30th of the applicable funding year. With schools and libraries closed for lengthy periods of time, the Bureau recognized that service providers may not be allowed on the premises and may experience significant challenges in meeting this construction deadline. The Bureau also (1) extended the service delivery deadline for nonrecurring services for funding year 2019 by one year (from September 30, 2020 to September 30, 2021); (2) granted schools and libraries an automatic 60-day extension to file requests for review or waiver of decisions by USAC; (3) provided applicants and service providers an automatic 120-day extension of the invoice filing deadline; and (4) gave all program participants an additional 30-day extension to respond to certain information requests from USAC.

FCC, FTC Demand Gateway Providers Cut Off Robocallers

On April 3, 2020, the FCC and the Federal Trade Commission (“FTC”) demanded that service providers take action to stop coronavirus-related scam robocalls from bombarding American consumers. They specifically warned three gateway communications providers allegedly facilitating COVID-19-related scam robocalls originating overseas that they must take action to stop carrying these calls or face serious consequences. Specifically, if the providers do not take action to address the scam robocalls, the FCC will allow other providers to block all traffic from these gateway providers’ networks. The FCC and FTC have been working closely with the Department of Justice (“DOJ”) on this first-of-its-kind effort to stop scammers from reaching American consumers. The warning shows that the FCC, FTC, and other agencies plan to aggressively address consumer protection-related issues during the crisis. Click here to read more about the FCC and FTC actions.

Chairman Pai Announces More Keep Americans Connected Signatories

On March 25, 2020, Chairman Pai announced that additional service providers have signed the Keep Americans Connected Pledge (see our coverage of the pledge here). Under the pledge, service providers agree to forgo service terminations due to inability to pay, waive late fees, and open Wi-Fi hotspots for those who need them for a 60-day period. There are now 626 service providers and 14 trade associations that have signed the Chairman’s pledge.

FCC Enables Rural Broadband Providers to Waive Certain Consumer Fees

On April 1, 2020, the WCB approved waiver requests from the National Exchange Carrier Association (“NECA”) and John Staurulakis, Inc. (“JSI”) to allow the two organizations to quickly implement tariff changes to ensure that NECA and JSI participant companies have the flexibility to meet the Keep Americans Connected pledge during the COVID-19 pandemic. The WCB’s action immediately permitted waivers of late payment penalties as well as installation and early cancellation fees that the providers normally would be required to assess in accordance with their tariffs. The WCB’s waiver deserves close attention by tariffed service providers and signals the agency’s openness to regulatory relief benefitting consumers.

FCC Waives Restrictions on Hiring Contractors for ASL Interpretation Services

On April 3, 2020, the Consumer and Government Affairs Bureau granted a temporary, limited waiver of the Commission’s rule restricting providers of video relay service (“VRS”) from contracting for video interpretation services with an entity that is not itself an eligible provider (DA 20-378). With increased VRS traffic levels and employee absences due to health concerns, school closures, and other restrictions imposed by state and local authorities, VRS providers continue to face a shortage of interpreters able to work as communications assistants. By allowing VRS providers additional flexibility to contract for qualified American Sign Language (“ASL”) interpreting from other entities, such as providers of video remote interpreting, the FCC hopes to alleviate this shortage.

FCC Postponing 3.5 GHz Auction on Account of COVID-19

On March 25, 2020, the FCC 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 (DA 20-330). The Commission cited the need to protect the health and safety of Commission staff during the auction and the ancillary benefit that parties would have additional time to prepare to participate. FCC Chairman Ajit Pai reiterated the agency’s commitment to hold the auction this summer. The auction is the first in the so-called mid-band, a range of spectrum seen as critical to the rollout of 5G wireless applications. Commissioner Michael O’Rielly tweeted 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. For more information on the postponement and the auction, please see our blog post.

Wireline Competition Bureau Extends Mozilla Remand Comment Cycle

On March 25, 2020, in response to a March 11, 2020, petition asking for a 30-day extension, the WCB issued a Public Notice (DA 20-331) granting a 21-day extension of the comment and reply comment cycle for the proceeding in the wake of the D.C. Circuit’s remand in Mozilla v. FCC (2018). Comments are due on April 20, 2020 (from March 30, 2020), and reply comments are due on May 20, 2020 (from April 29, 2020).

In issuing the extension, the WCB agreed with the petitioners’ argument that individuals, organizations, and state and local governments whose work is dedicated to public safety are increasingly focused on managing the COVID-19 pandemic and may be unable to submit comments on the public safety issues discussed in the remand proceeding. However, the FCC cited the need for expediency in remand proceedings as the reason for granting a 21-day extension instead of the petition’s request for a 30-day extension.

In addition, the FCC took the following actions in response to the pandemic:

• On March 25, 2020, the Office of Engineering and Technology issued a Public Notice (DA 20-334) granting a 21-day extension of the reply comment deadline in the 5.9 GHz proceeding. Reply comments are now due on April 27, 2020 (from April 6, 2020). Initial comments were due on March 9, 2020. The entire 75 megahertz of the 5.850-5.925 GHz Band is allocated for connected car intelligent transportation systems using dedicated short-range communications ("DSRC") technology. Under pressure to allocate more spectrum for Wi-Fi operations and dissatisfied with the pace of DSRC development and deployment, the Commission has proposed reallocating 45 megahertz of the Band for unlicensed use and 20 megahertz to cellular vehicle-to-everything intelligent transportation system technology, while preserving only 10 megahertz for DSRC.
• On April 10, 2020, the FCC’s Office of Economics and Analytics (“OEA”) extended via Public Notice (DA 20-401) the comment and reply comment deadlines for its Public Notice, released on February 27, 2020, which sought input on the state of the communications marketplace to inform the Commission’s required assessment of competition within the communications industry in its second Communications Marketplace Report to Congress. The Report provides an opportunity for stakeholders to evaluate competitive barriers to wireless and fixed broadband deployment, as well as international services. With this extension, comments are now due April 27, 2020 and reply comments are due May 28, 2020.
• On April 1, 2020, the Wireless Telecommunications Bureau (“WTB”) announced (DA 20-365) a compilation of instructions for filing Special Temporary Authority (“STA”) and waiver requests in response to the declaration of national emergency due to COVID-19 issued on March 13, 2020. The WTB STA and Wavier Filing Guide can be found online here. On April 10, 2020, the Public Safety and Homeland Security Bureau provided guidance to public safety entities on requesting STA and waivers (DA 20-404). All providers should consider whether an STA is appropriate to provide additional flexibility and improve service.
• ​On March 27, 2020, the FCC granted​ STA for 33 wireless Internet service providers (“WISPs”) to use the lower 45 megahertz in the 5.850-5.925 GHz Band for 60 days to address the increase in consumer demand because of the COVID-19 pandemic. Participating WISPs are required to file FCC Form 601 (application for an STA) within 10 days to access the full 60-day STA, and are required to operate in the band on a secondary, non-interference basis so as not to interrupt existing DSRC and federal radiolocation operations.
• ​On March 26, 2020, the FCC's WTB granted AT&T Special Temporary Authority (“STA”) to utilize additional spectrum in Puerto Rico and the U.S. Virgin Islands for 60 days to handle increased network traffic as a result of the COVID-19 pandemic. On March 30, 2020, the WTB granted A:shiwi College & Career Readiness Center an STA to utilize unassigned Educational Broadband Service(“EBS”) spectrum for 60 days in the eligible rural tribal land on the Zuni Reservation in New Mexico for similar reasons. These STAs are in addition to the ones previously granted by the Commission. ​
• On April 10, 2020, the FCC’s WTB enabled AT&T to deploy two cell sites in Wisconsin to support wireless service for a critical medical facility. That facility is being constructed by the U.S. Army Corps of Engineers at the Wisconsin State Fair Park in Milwaukee, Wisconsin to care for COVID-19 patients. The WTB granted AT&T’s request to expedite environmental review of the two proposed wireless tower sites, which will also serve first responders as part of AT&T’s FirstNet public safety broadband network. It is likely that the FCC will grant similar requests to expand communications infrastructure during the crisis.
• On April 2, 2020, the Public Safety and Homeland Security Bureau released a Public Notice (DA 20-367) reminding authorized alert originators, including state and local governments, that the Wireless Emergency Alert (“WEA”) system is available as a tool to provide life-saving information to the public during the coronavirus COVID-19 pandemic. In recent years, the FCC, together with the Federal Emergency Management Agency (“FEMA”) and participating wireless service providers, have taken important measures to promote the effectiveness of WEA, and to make such messages more accessible, including the capability to send more detailed alerts of up to 360 characters for 4G-LTE networks, the option to convey recommended actions for saving lives or property for use in connection with Imminent Threat Messages, and the ability to send alerts in Spanish.
• On March 26, 2020, the WCB waived a number of rules in its Rural Healthcare Program affecting existing users of the support programs. Most importantly, the Bureau’s order (DA 20-345) permits RHC applicants to extend existing evergreen arrangements with service providers by one year, without conducting an additional competitive bidding process, thereby ensuring continuity of service during the crisis. This builds on the Commission's previous waiver of rules for both the Rural Healthcare Program and the E-Rate program.
• On March 30, 2020, the FCC's WCB issued an order (DA 20-354) waiving certain rules requiring involuntary de-enrollment of Lifeline subscribers, including for non-usage of the service, until May 29, 2020. The Bureau also extended the previous waivers​ of the annual recertification and National Verifier reverification process de-enrollments to May 29 so that all of the waivers will expire at the same time.

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.

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.

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.

The three-tiered 3.5 GHz band framework which is still in the process of being launched is designed to allow sharing –by multiple-user types: by primary radar and satellite users which would retain the highest priority and level of interference protection, by second-priority PALs licensed by auction, and by third-tier licensed-by-rule General Authorized Access (“GAA”) users. Advanced frequency coordinators, known as the Spectrum Access System (“SAS”) administrators supported by Environmental Sensing Capability (“ESC”) Operators, will mediate and control access rights between the three tiers of users.

Possible PAL Rule Modifications

The NPRM does not propose to alter the basic structure, but instead seeks comment on potentially modifying the licensing rules for PALs in the following ways:

• Longer License Terms. The NPRM proposes extending PAL license terms, from three years to ten years with the expectation that this will increase the value of the licenses for prospective PAL applicants and provide incentives for them to seek licenses.
• Renewal Expectancy. The FCC proposes to eliminate the current requirement that PALs automatically terminate at the end of the license term. Rather, the NPRM tentatively concludes that PALs should enjoy a renewal expectancy, in the hopes of promoting investment in deployment and minimizing the risk of stranded investment.
• Expanded Geographic License Areas. The current PAL licensing rules provide for licenses issued in each census tract, anticipating their use for small cells. The NPRM solicits comment on larger PAL license areas such as Partial Economic Areas (“PEAs”) or counties. The NPRM reflects a prediction that larger license areas would “stimulate additional investment, promote innovation, and encourage efficient use of spectrum resources,” while asking for input on impacts to smaller entities, rural deployments, and investments relying on the current rules. The NPRM reflects an openness to a variety of approaches, such as a hybrid where some of the 10 megahertz-wide PALs would be issued within PEAs whereas others would be issued on a smaller scale, or a combination of PEAs in urban areas and census tracts in rural areas, offering PALs of different sizes, among other alternatives.
• Spectrum Caps. While the Commission has not proposed to increase the amount of spectrum in the 3.5 GHz band available to PALs in excess of the current 70 megahertz – rejecting T-Mobile’s proposal in its petition and ensuring at least 80 GHz will always be available in a given area for GAA licensees – the FCC does seek comment on lifting or revising the current single-licensee cap of 40 megahertz in a given area.
• Secondary Market Transaction Reforms. Consistent with its proposal to expand the geographic size of PAL licenses, the Commission proposes to allow partitioning and disaggregation of PALS in secondary market transactions to promote the efficient use of the spectrum where a licensee does not plan to utilize the entire license authority. However, the Commission also seeks comment on whether to allow partitioning and disaggregation irrespective of whether the agency opts to expand PAL license areas.
• Auction Rule Modifications. The FCC proposes to eliminate prior restrictions on the number of PALs per license area that are made available at auction depending on the number of PAL applicants for a given license area. Currently, except in rural areas, if there is only one PAL applicant, no licenses will be issued. The NPRM asks for comment on whether the proposed changes in the term, renewability, and geographic license area of PALs would make PALs “more useful to a wider range of potential licensees and, if so, whether that would reduce the benefit of limiting the number of PALs available in a given license area or not assigning PALs in any area for which there is only one applicant.” The Commission now proposes to assign PALs even when there is only one applicant in a given license area, assuming the applicant is otherwise qualified. The NPRM also asks whether there should nonetheless be an auction – bids of a minimum amount per license issued – where there are no more than applications for seven 10 megahertz in a given area, i.e., no traditional mutual exclusivity. Finally, the Commission seeks comment on allowing PAL applicants to bid on specific spectrum blocks within any given PAL license area.

The NPRM proposes to amend the current CBRS rules which require SAS administrators to make Citizens Broadband Service Device (“CBSD”) registration information available while “obfuscating” CBRS licensees’ identities. The Commission proposes, rather, to prohibit SAS administrators from disclosing publicly CBSD registration information that may compromise the security of critical network deployments or be considered competitively sensitive. The Commission recognizes that several carriers opposed disclosure on the grounds that it could jeopardize network security and confidential business information. However, the Commission also acknowledges arguments by parties such as Google and the Wireless Internet Service Providers Association (“WISPA”) that registration information is valuable to potential co-channel operators in investigating the feasibility of deploying service in the 3.5 GHz band before incurring the cost of attempting to reserve or participate in an auction for spectrum. Accordingly, the FCC proposes to amend the rules “to prohibit public disclosure of registration information that may compromise network security or that is competitively sensitive,” while asking whether, consistent with such a prohibition, there is certain information that SAS administrators can release to would-be operators to promote increased spectrum use in the complex multi-tier priority framework.

Potential Revisions to 3.5 GHz Emissions and Interference Limits

The Commission seeks to relax the CBRS out-of-channel and out-of-band emission limits applicable in the 3.5 GHz band, principally to facilitate wider bandwidth channels. Previously, the FCC adopted the following limits:

• -13 dBm/MHz from 0 to 10 megahertz from the assigned channel edge;
• -25 dBm/MHz beyond 10 megahertz from the assigned channel edge down to 3530 MHz and up to 3720 MHz;
• -40 dBm/MHz below 3530 MHz and above 3720 MHz.

Accompanying Order Terminating Petitions

A brief Order accompanies the NPRM and consolidates several dockets pertinent to 3.5 GHz. As noted above, T-Mobile and CTIA each filed petitions for rulemaking earlier in the year seeking revisions to the 3.5 GHz band rules. In general, the Order grants both petitions but rejects proposals by T-Mobile to revisit in-band base station power limits and make the entire 150 megahertz of the band available for PALs, as discussed earlier.

* * *

If adopted, the PAL licensing reforms proposed in the NPRM could have serious ramifications for how the 3.5 GHz band is utilized. Such rule revisions could alter both the extent and the nature of investment in the 3.5 GHz band, impacting the variety of providers and operators that seek access to the band. While expanding the scope and duration of PALs could make them more attractive to large carriers for 5G deployment, these same measures, depending on the details, may act as a disincentive to participation in PALs by small businesses and rural carriers. Parties interested in the 3.5 GHz band would do well to monitor this proceeding (and even participate in the rulemaking) and look for new developments, as we will continue to do.