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.

Background

In 2002, the Commission designated 50 megahertz of spectrum (4940-4990 MHz) in for use by public safety services. The current band plan divides the band into ten one-megahertz channels (Channels 1-5 and 14-18) and eight five megahertz channels (Channels 6-13), while limiting channel aggregation bandwidth to 20 megahertz.

Although nearly 90,000 public safety entities are eligible for licenses in this band, the FCC’s licensing database reveals that fewer than 3,200 licenses have been granted. Given that only 3.5% of the eligible organizations making use of the spectrum, the Commission is concerned that the band has “fallen short of its full potential.” Accordingly, the Commission seeks comment on alternative ways to foster increased usage of the 4.9 GHz band. The options integrated in the FNPRM draw on an extensive record as well as the National Public Safety Telecommunications Council (“NPSTC”) Plan generated in 2013 and the Association of Public Safety Communications Officials (“APCO”) Report submitted into the record in 2015.

Band Aggregation Proposals

At the outset, the FNPRM proposes to grandfather all incumbent users of the 4.9 GHz band as of the date final rules become effective. Beyond this proposal, the FNPRM focuses on possible expansion of public safety use of the band by relaxing in-band aggregation limits. The Commission seeks to retain the band’s existing channelization plan, but to increase the channel aggregation bandwidth limit 100% from 20 to 40 megahertz. The Commission also proposes to aggregate Channels 1-5 (1 MHz each) to form a five-megahertz bandwidth channel designated for aeronautical mobile and robotic use. The agency proposes to limit aeronautical mobile use to manned aircraft video payload operations (not allowing command and control), but also seeks comment on the potential for the 4.9 GHz band to support various UAS payload operations in the future. In addition, the FCC set forth a possible plan to accord primary status for public safety narrowband fixed point-to-point and point-to-multipoint links on Channels 14-18 (each is a 1 MHz channel). Currently, such narrowband links remain secondary to other public safety operations in the band.

Coordination Process Reforms and Spectrum Sharing

Per the FNPRM, the FCC solicits comment on requiring applicants for new stations and current licensees seeking modifications to submit to frequency coordination administered by FCC-certified frequency coordinators. The Commission proposes to use the Universal Licensing System (“ULS”) as the frequency coordination database for the 4.9 GHz band, and intends to use existing form schedules to capture point-to-point, point-to-multipoint, fixed receiver, base station, and mobile station data to populate the database. Under the FCC’s proposal, grandfathered incumbent 4.9 GHz licensees will not have to submit to frequency coordination for their existing operations in the band. However, incumbent licensees with point-to-point, point-to-multipoint, base, and mobile stations will still be required to file certain technical information in ULS to ensure their operations are protected during future coordination.

In the event the Commission expands eligibility to other classes of users, the FCC invites comment on the prospects of utilizing a two-tiered spectrum sharing framework. Under such a plan, the Commission proposes that public safety users would enjoy priority access and other users would gain access on a secondary or non-interfering basis. The Commission seeks comment on implementing such a structure by either utilizing the ULS database in a manner akin to the TV white spaces database or developing an automated database with potentially more robust capabilities to assure real-time protection of mission-critical public safety operations. The FNPRM does not explicitly propose using Spectrum Access Systems (“SAS”) or Environmental Sensing Capabilities (“ESC”), but asks questions which might implicate these or similar solutions.

Band Eligibility and Alternative Uses

In the FNPRM, the FCC solicits comment on a variety of ways to expand license eligibility in the 4.9 GHz band beyond public safety. Currently, only entities providing public safety services are eligible for licenses in the band. The FCC seeks comment on expanding eligibility by allowing entities from Critical Infrastructure Industries (“CII”) to operate in the band on a co-primary basis with public safety services (under the FCC’s rules, CII means “State, local government and nongovernment entities, including utilities, railroads, metropolitan transit systems, pipelines, private ambulances, volunteer fire departments, and not-for-profit organizations that offer emergency road services, providing private internal radio services provided these private internal radio services are used to protect safety of life, health, or property; and are not made commercially available to the public.”).

Alternatively, the Commission seeks comment on whether it should redesignate the 4.9 GHz band, in whole or in part, for commercial wireless use (including potentially relocating incumbent public safety users to other frequency bands). In conjunction with possible expansion of eligibility, the Commission also seeks comment on ways to liberalize the terms on which public safety entities may lease 4.9 GHz spectrum to other parties eligible to operate in the band.

Impact

While the FNPRM largely focuses on channel aggregation and coordination process reforms to facilitate expanded public safety investment and use on a protected basis, this proceeding presents CII enterprises and various commercial wireless stakeholders with an opportunity to potentially gain access to valuable mid-band spectrum. Public utilities, non-public safety government organizations responsible for critical infrastructure, mobile carriers, and others are likely to be interested, as this is the only range of mid-band spectrum in the 4 GHz band currently under active consideration by the Commission in a rulemaking, although the agency is examining the 3.7-4.2 GHz band in the Mid-Band Spectrum Notice of Inquiry. However, the Inquiry proceeding cannot proceed directly to rules, and will itself require a rulemaking proceeding to be initiated before rules can be adopted.

Comments on the FNPRM will be due 60 days and reply comments will be due 90 days after publication of the FNPRM in the Federal Register. Publication has not yet occurred.

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.

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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.