CommLaw Monitor News and analysis from Kelley Drye’s communications practice group Sat, 20 Apr 2024 12:45:33 -0400 60 hourly 1 FCC Opens New Chapter in Repurposing Spectrum in the 3 GHz Band Thu, 10 Sep 2020 20:25:45 -0400 In the wake of the recent completion of the 3550-3650 MHz auction of Priority Access Licenses (“PALs”) in the Citizens Broadband Radio Service (“CBRS”) making 70 megahertz of so-called mid-band spectrum available, and the adoption of the regulatory framework in the 3700-4200 MHz band that will make available another 280 megahertz for flexible use commercial wireless operations, the FCC has announced its intention to take significant steps in realigning the 3450-3550 MHz range for non-federal flexible fixed and mobile use on a shared basis with existing federal radiolocation operations. On September 9, 2020, the FCC made available a draft Report and Order and Further Notice of Proposed Rulemaking (“Order and FNPRM”) on which it will vote at its September 30 Open Meeting. This document follows closely on the heels of the FCC’s June 2020 notification to the National Telecommunications and Information Administration (“NTIA”) of a plan to commence an auction in December 2021 for flexible use licenses within the contiguous United States (“CONUS”) in the 100 megahertz of the 3450-3550 MHz band. In July 2020, the NTIA issued a report concluding that 3450-3550 MHz “is a good candidate for potential spectrum sharing, including at the commercial system power levels sought by the wireless industry.” For its part, the Department of Defense (“DoD”), a primary user of the 3450-3550 MHz band, announced earlier this summer that it had devised a sharing framework for this spectrum and will undertake the work needed to prepare the spectrum for auction in this very aggressive time frame.

As the DOD completes its efforts to enable sharing with non-federal terrestrial communications systems, the FCC will consider an Order to adopt its proposal to remove the secondary, non-federal radiolocation and amateur service allocations from 3300-3550 GHz as a first step toward making additional spectrum available for commercial wireless communications and federal/non-federal sharing. The draft Order would allow incumbent licensees to continue in-band operations on a time-limited basis while the FCC finalizes plans to reallocate 3450-3550 MHz. In general, the FCC seeks to maximize the entire 3100-3550 MHz band for potential flexible use operations in the future. Accordingly, non-federal radiolocation licensees in the 3300-3550 MHz range would be transitioned to the 2900-3000 MHz radiolocation band on a secondary basis, and amateur licensees currently in 3300-3500 MHz would have to move to other existing amateur radio allocations they choose. Moving existing radiolocation operations below 3000 MHz is characterized as a measure to retain the potential for future flexible use licensing of the 3100-3300 MHz band, in addition to 3300-3550 MHz. The draft Order would also permit continued experimental radiolocation operations under Part 5 – something that Lockheed Martin and Boeing pushed for ­­– under the same limitations as they are allowed in other flexible use bands requiring operations on a non-interference basis.

The FNPRM would seek comment on proposed subsequent steps: allocation changes to enable future commercial flexible use (except aeronautical mobile) where possible on an exclusive, not shared basis; coordination frameworks between flexible users and federal incumbents; relocation logistics for non-federal secondary users (amateur radio operators and non-federal radiolocation); and technical, licensing, and operating rules for new flexible use licensees including possible protections to flexible use licensees in the 3450-3550 MHz band from federal operations in adjacent bands, i.e., below 3450 MHz and above 3550 MHz. The FNPRM proposes licenses issued by auctions in 20 megahertz blocks on an exclusive geographic basis. The proposed sharing mechanism, on which the FCC would seek comment, would prohibit incumbent federal systems operating in the 3450-3550 MHz band from causing harmful interference to co-band non-federal operations in the band, except that non-federal systems would not be entitled to protection from federal operations and may be subject to other restrictions (1) in to-be-established limited Cooperative Planning Areas, such as military training facilities, test sites, Navy home ports, and shipyards; (2) in Periodic Use Areas where DoD will need episodic access to all or a portion of the band; and (3) during times of National Emergency.

The FCC hopes that federal agencies will file transition plans for the 3450-3550 MHz band by April 2021 and that licensed flexible use operations will commence as soon as early 2022.

Meanwhile, this is not necessarily the final chapter of opening up spectrum for flexible use in the 3 GHz Band. NTIA’s July 2020 report suggested that some federal/non-federal spectrum sharing below 3450 MHz might be possible, but would require additional analysis. The report identified four principal areas for further exploration of additional sharing in 3100-3450 MHz: (1) a more in-depth assessment of the extent each of the federal systems is used; (2) the development of a reliable mechanism for commercial operations to coordinate when federal systems are operating; (3) assessment of the potential for relocating federal systems, including nationwide airborne systems; and (4) consideration of improved out-of-band emission limits for commercial operations. As noted above, the FCC’s proposals in the draft Order and FNPRM anticipate prospects for making even more 3 GHz flexible use spectrum available in the future.

FCC Will Seek Comment on Auction Procedures for 3.5 GHz PALs Tue, 24 Sep 2019 11:19:14 -0400 At its Open Meeting on Thursday (September 26), the FCC will be set to adopt a Public Notice that seeks comment on bidding procedures for Auction 105 – the long-anticipated auction of Priority Access Licenses (“PALs”) in the 3550-3650 MHz (“3.5 GHz”) band. According to a draft of the Public Notice released in early September, the Commission will auction seven unpaired 10-megahertz channels in each county-based license area for a total of 22,631 PALs nationwide. The Public Notice also seeks comment on allowing bidders the option to bid at a Cellular Market Area (“CMA”) level in the 172 top CMAs that incorporate multiple counties and are classified as Metropolitan Statistical Areas (“MSAs”). We identified this “package bidding” as a potential cause for dispute at this bidding procedures stage in our November 5, 2018 post on the Report and Order that modified the 3.5 GHz Band licensing regime.

In the October 2018 Report and Order, the Commission sought to promote greater investment in the band, by 5G proponents in particular, by making PALs more attractive to commercial mobile service providers. The Order sought to accomplish this by, among other things, increasing the size of PAL license areas from census tracts to counties (with the potential opportunity for package bidding in MSAs), and extending license terms from three to ten years with a renewal expectancy.

Since that Order, the Commission has moved forward with testing and approvals for three Environmental Sensing Capability (“ESC”) operators (Commscope, Federated Wireless and Google) to facilitate dynamic spectrum sharing (“DSS”) in the 3.5 GHz Band and six Spectrum Access System (“SAS”) Administrators (Amdocs, Commscope, Federated Wireless, Google and Sony) for initial commercial deployments. At a September 18, 2019 event, the FCC marked the launch of commercial services in the band – the General Authorized Access (“GAA”) operators that are licensed by rule and must avoid interference to both PALs and incumbents in the band.

In the Public Notice, the Commission seeks comment (penciled in for October 28, and replies by November 12), on the procedures for Auction 105 for the PALs. Individual licensees can hold up to four PALs out of the seven within the band in any license area at any given time. The Commission is proposing to use an ascending clock auction design in which anonymous bidders indicate their demands for generic license blocks in license areas. Unlike Auctions 102 and 103 for the millimeter wave Spectrum Frontiers bands, in the so-called 28 and 24 GHz Bands, respectively, PALs will not be assigned specific frequencies during the auction and instead will be authorized to use frequencies associated with their licenses as they are dynamically assigned by SAS Administrators, in accordance with the three-tier dynamic sharing arrangement in the band. The Commission plans to start the auction on June 25, 2020.

Perhaps the most politically controversial aspect of the Public Notice will be its proposal to allow bidders to elect, prior to the start of the auction, to bid at CMA-level for blocks in all of the counties comprising MSAs, which are the largest CMAs in the large metropolitan areas that incorporate multiple counties. In her dissent to the October 2018 Report and Order, Commissioner Rosenworcel (the lone Democrat at the time) lamented the “lost opportunity” in the band to auction smaller licenses for shorter terms as the original Obama-era rules provided for, which she believed would foster innovative and flexible new services and sensors. She criticized increasing the geographic size of licenses from census tracts to counties, and may well question allowing bidders seeking PAL MSA-wide access in the large metropolitan areas. Whether there will be a significant opposition to this concept in response to the new Public Notice, once it is adopted, will be one of the things to watch for as this long-anticipated auction draws near in what is recognized as a key candidate band for 5G deployment.

October 2017 FCC Meeting Recap: Can We Be Better PALs? The FCC Seeks to Modify the Two-Year-Old Rules in the 3.5 GHz Band Citing the Need to Bolster Investment Incentives. Sun, 29 Oct 2017 19:02:43 -0400 At its Open Meeting on October 24, the FCC took a major step in recrafting the licensing and other rules for the Citizens Broadband Radio Service (“CBRS”) in the 3550-3700 MHz band (the “3.5 GHz band”) and promote 5G rollouts. Early in his tenure as FCC Chair which began in January of this year, Ajit Pai tasked Commissioner Michael O’Reilly with reexamining the regulatory framework in the band adopted in 2015, particularly as it applied to Priority Access Licenses (“PALs”). Within months, CTIA and T-Mobile filed petitions for rulemaking to make the licensing rules, from commercial wireless’s perspective more investment friendly. Now the Commission has moved ultra-rapidly to act on those petitions and issue a Notice of Proposed Rulemaking (“NPRM”) to consider making rule changes largely consistent with those sought by those proponents. The Commission hopes to bolster commercial investment and deployment in the band convinced that, for large scale 5G deployments, providers need greater certainty than the Wheeler-era rules afford.

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.
Proposed CBSD Disclosure Reforms

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.
In order to facilitate wider channels, the Commission seeks comment on two alternative proposals that would replace the existing limits and relax the emissions masks so as to make them scalable, accommodating channels with bandwidths in excess of 10 and 20 megahertz thereby promoting investment and innovation in the 3.5 GHz band:
Proposal 1 Proposal 2

(1) -13 dBm/MHz limit from 0 to 100% of channel bandwidth (“B”);

(2) -25 dBm/MHz limit beyond 100% of B; and

(3) -40 dBm/MHz limit below 3530 MHz and above 3720 MHz.

(1) -13 dBm/MHz from 0 to 50% of B megahertz from the assigned channel edge;

(2) -20 dBm/MHz from 50% to 100% of B megahertz from the assigned channel edge;

(3) -25 dBm/MHz beyond B megahertz from the assigned channel edge, down to 3530 MHz and up to 3720 MHz;

(4) -40 dBm/MHz below 3530 MHz and above 3720 MHz.

The Commission seeks comment on both of the proposals and on the tradeoffs in the number and levels of the attenuation steps.

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.