You will find more information about the most significant items after the break.

Appeals of STIR/SHAKEN Revocation Decisions – The Third Report and Order (“Order”) would establish a process for the FCC’s private Governance Authority that oversees the STIR/SHAKEN framework to review and revoke the ability of a voice service provider to participate in STIR/SHAKEN. The Order would also create an appeals process for voice service providers to challenge any revocation decisions, modeled on the established appeals process and procedures for reviewing decisions by the Universal Service Administrative Company (“USAC”). Voice service providers affected by a revocation could file a request for review with the FCC, and third parties would be permitted to file oppositions and replies to the request in ECFS.

Establishing Two New Innovation Zones – The Public Notice would approve the creation of two new Innovation Zones for experimental licenses in Boston, MA (Northeastern University) and Raleigh, NC (NC State University), and would expand the geographical boundary of the Innovation Zone in New York City. Innovation Zones allow experimental licensees to conduct unrelated experiments at designated locations without requiring explicit FCC approval. The NC State Innovation Zone would be intended to study new use cases for advanced wireless technologies emerging in unmanned aerial systems (“UAS”), while the Northeastern Innovation Zone would allow researchers to use the Colosseum wireless network emulator to extend and accelerate research in wireless networked systems. The two Innovation Zones would also promote platforms to test the integration of Open Radio Access Networks (Open RAN). Both Innovation Zones would be established for a renewable period of five years.

Updating FCC Numbering Policies – The Further Notice of Proposed Rulemaking would adopt clarifications and revisions to the Commission’s numbering rules, consistent with the Congressional directives in the TRACED Act. The FNPRM would propose to require additional certifications as part of the direct access application to numbering resources and would require disclosures of foreign ownership information of applicants, proposing to refer applicants with 10% or greater foreign ownership to the Executive Branch agencies. It would also require direct access authorization holders to more frequently update the FCC of any ownership changes, and would seek comment on expanding the direct access to numbers authorization process to one-way VoIP providers or other entities using numbers.

Updating TRS Compensation – The Notice of Proposed Rulemaking would propose changes to the compensation methodology for the Internet Protocol Relay, a form of Telecommunications Relay Service (“TRS”) that allows an individual with a hearing or speech disability to communicate with voice telephone users by transmitting text via the Internet. The NPRM would propose to modify the compensation methodology to permit recovery of reasonable costs of outreach and operating margins, and would seek comment on permitting recovery of indirect overhead costs. It would also propose to calculate the base compensation level using projected costs and demand over a multi-year compensation period. The NPRM further would seek comment on a proposed potential hybrid compensation model that would rely in part on compensation for state-program relay service.

Click here for more information and to register.

HobbyKing markets its devices on its website, HobbyKing.com. The devices in question operate in various amateur bands between 12450 and 5925 MHz, but the troubles for HobbyKing emerged because the devices also operate on other bands, including several restricted bands, and some models operate at higher powers than permitted under the FCC rules. In 2015, the Bureau received several complaints against HobbyKing, which resulted in a Marketing Citation for violations of Section 302 of the Communications Act as well as Sections 2.803 and 2.925 of the FCC Rules for illegal marketing of two noncompliant AV transmitters. Further complaints surfaced in 2017, which led to a Bureau Letter of Inquiry (“LOI”). Apparently, HobbyKing received the LOI, but failed to respond fully, which led to another Citation – this time for failure to respond to the LOI (the “LOI Citation”) – and the Bureau ordered a response, but the company did not respond fully, according to the NAL. But the response was enough for the Bureau to determine that HobbyKing continued to market transmitters that required, but did not have, equipment authorization. The devices operated on both amateur as well as non-amateur frequencies, which negated HobbyKing’s ability to rely on an exemption from equipment authorization that operate only on amateur frequencies (and adhere to otherwise applicable technical requirements). Three of the 65 models in question also operated at power level that exceeded the limits the Commission established for amateur commend of model aircraft.

(The Commission explained in the NAL: “The Commission generally has not required amateur equipment to be certified, but such equipment must be designed to operate only in frequency bands allocated for amateur use. If such equipment can operate in amateur and non-amateur frequencies, it must be certified prior to marketing and operation.” To reinforce these points, on the day of the NAL, the Bureau issued an Enforcement Advisory, which we covered in an earlier blog post.)

In addition to erroneously thinking (at one time, at least) that its devices qualified for the exemption applicable to devices that operate only on amateur frequencies, the company also claimed that it does not market its devices to U.S. customers. But apparently there is substantial evidence to the contrary, including the fact that their website says they ship worldwide and HobbyKing has a New York office and customer service operations in the United States. Also worthy of note, on July 3, 2017, they posted on their Instagram account, “Wishing our US customers a very happy Independence Day!”

Taking into account the totality of the circumstances, the Bureau proposed a forfeiture of almost $2.9 million. Providing a window into its thinking, the Bureau started with a base penalty amount of $7,000 for 65 models, a total of $455,000. For the fifty models that were operated without equipment authorization, the Bureau adjusted each penalty by $5,250 for repeated and continuous violations, namely engaging in the same type of marketing misconduct that led to the Marketing Citation HobbyKing after that Citation was issued. For those fifty models, the total proposed penalty is $612,500.

For the remaining fifteen models, the Bureau proposes the Commission issue the statutory maximum penalty of $147,290. Twelve of these devices, as noted above, operate in restricted bands in addition to amateur bands, and three of the AV transmitters exceed the power limits in the amateur bands in which they operate. Consequently, none of these fifteen devices could have received an equipment authorization. Under any circumstances, they could not be marketed in the United States. For these, the Commission issued a proposed penalty of $2,209,350.

Finally, the Commission tacked on an additional penalty of $39,278 for HobbyKing’s failure to respond to the LOI in the first instance and then to the LOI Citation, despite repeated opportunities to answer. The Bureau’s NAL treated HobbyKing’s failure to respond to the LOI and LOI Citation as individual, non-continuing violations and proposes to apply the statutory maximum of $19,639 for such violations in each case.

This NAL and the reasons for the aggravation of the penalty from base amounts reflects a number of lessons. Several of the key ones are: One, parties receiving inquiries or follow-up from the Commission should respond. Two, when parties don’t respond at first and are reminded of their obligation to respond to Commission inquiries or LOIs, they should respond. Three, companies marketing devices under their own brand name (or not), even if they do not manufacture them, are responsible for ensuring that they are marketing complaint devices. Four, parties should understand the rules that apply to the devices they market to ensure whether they have the proper authorization or are even eligible for authorization. Five, if companies think the devices they manufacture or market qualify for an exemption from the FCC’s equipment authorization rules, they should double check to be sure they meet all of the conditions for the exemption. Six, unlicensed devices that operate in one or more restricted bands cannot be authorized (absent an affirmative FCC waiver) and therefore cannot imported, marketed, or operated in the United States. Seven, companies that market RF devices only over the web must be mindful of what countries they are marketing to and what the regulatory requirements are in those countries.

The two significant equipment authorization enforcement actions in recent days – we direct you also to our post on the Pure Enrichment NAL released in late May -- rightfully makes one wonder if there are more to come in short order.

Having observed a growing number of websites that advertise and sell noncompliant radio accessories, specifically AV transmitters, intended for use with drones, the Bureau thought it was time to remind the public that advertising, selling, or otherwise marketing such devices if they are not certified under the FCC rules is generally illegal, as is using them. Only if AV transmitters operate exclusively within frequencies authorized for use only by amateur licensees may they be marketed without certification (although they must comply with all other relevant rules) and, if then, use is permitted only by licensed amateur operators. (Other operators of such devices that fall in the exception may be subject to penalties.) If AV transmitters operate on frequencies that fall outside the designated amateur frequency bands, even if they also operate within the amateur bands, they must first have a proper FCC certification before they can be advertised, sold, or operated within the United States. If they do not, then the Enforcement Bureau reminded the public that manufacturers, retailers, and operators may be exposed to substantial monetary penalties, citing recent cases ranging from $190,000 to $2,900,000 in forfeitures, and the regulatory limits of fines up to $19,639 per day of marketing violations and up to $147,290 for an ongoing violation.

The Advisory reminds the public that its equipment authorization-related requirements and potential penalties apply to all equipment, regardless of the country of origin, albeit the FCC regulations do not apply to equipment used by Federal government agencies, although the Department of Commerce (“DOC”) and its National Telecommunications and Information Administration (“NTIA”) may impose their own requirements for Federal agency use.

The Bureau reminds retailers and manufacturers to take the time to learn the FCC rules governing equipment authorization and comply with them. The Advisory recommends that drone operators, when buying accessories that either are electronic or have electronic components, should ensure that these devices or components are properly labeled as FCC-compliant. The Bureau also reminds individuals without amateur licenses that they may not use drone equipment, such as AV transmitters that operate only on amateur frequencies, that is designed solely for use by amateur licensees.

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.

Background

Last year, in its inaugural Spectrum Frontiers order (The “July 2016 Order”), the Commission designated the 27.5-28.35 GHz (“28 GHz band”), 37-38.6 GHz (“37 GHz band”), and 38.6-40 GHz (“39 GHz band”) bands for flexible mobile and fixed commercial use (i.e., the so-called Upper Microwave Flexible Use Service or “UMFUS”), and designated the 64-71 GHz band for unlicensed use (to supplement 57-64 GHz which had been designated for unlicensed use a few years earlier). The June 2016 Order also contained a Further Notice of Proposed Rulemaking (“First FNPRM”). Items raised in the First FNPRM, along with several petitions for reconsideration of last year’s action, are the subject of the recent trio of recently released orders.

This latest release included a Second Report and Order, a Memorandum Opinion and Order (“Memorandum Order”), and a Second Further Notice of Proposed Rulemaking (“Second FNPRM”), and the Commission also resolved a number of issues on reconsideration of the July 2016 Order in the Spectrum Frontiers docket in an Order on Reconsideration. This latest Spectrum Frontiers item also addressed a host of ancillary sharing, licensing, and technical issues in several different mmW bands. Parts of First Further Notice remain unresolved.

More Spectrum for UMFUS

While the FCC has yet to auction any of the UMFUS spectrum designated in 2016 (outside of the incumbent fixed licenses in the 28 and 39 GHz bands converted to UMFUS), it has now adopted an additional 1700 megahertz of mmW spectrum for licensed flexible commercial wireless fixed and mobile use in the 24.25-24.45, 24.75-25.25, and 47.2-48.2 GHz bands (the first two, the “24 GHz” bands, collectively, and the third, the “47 GHz” band, respectively). As a result, 24.25-24.45 GHz is now allocated for non-Federal fixed and mobile services on a co-primary basis, and 24.75-25.25 GHz for non-Federal fixed, mobile, and fixed-satellite (“FSS”) services on a co-primary basis. In the 24.25-24.45 GHz band, the Commission notes that international studies are being conducted to determine limits that might be needed to protect passive services in the nearby 23.6-24.0 GHz band; the Commission’s technical rules in the 24.25-24.45 GHz band for UMFUS are subject to potential change depending on the outcome of those studies. As with the 28 and 39 GHz bands, the Commission grandfathered existing fixed service licenses in the 24.25-24.45 and 24.75-25.25 GHz band, paving the way for those licenses to be converted to the UMFUS without the need for the licensees to compete at auction for geographic licensing on a Partial Economic Area (“PEA”) basis.

The 47 GHz band has existing allocations in the fixed and mobile services with no Federal allocations. The Commission found it well-suited for UMFUS operations licensed through auctions on a PEA geographic license area basis. The FCC also added the 47 GHz band to Section 25.136(d) of the rules, which allows sharing between terrestrial operations and FSS earth stations in uplink bands by permitting a limited number (three in each county, up to a maximum of fifteen in each PEA) of FSS earth station location deployments without having to protect UMFUS stations in a manner similar to the 28 GHz band, a subject area that was the subject of reconsideration of the July 2016 Order. Having adopted such rules, the Commission underscored its ongoing encouragement to both the mobile and the satellite industries to continue working cooperatively on coexistence in shared mmW bands.

Seeing insufficient reason to act in a measured pace, the FCC rejected a proposal that it hold off allocating more mmW spectrum for flexible fixed and mobile use until after more development occurs in existing UMFUS spectrum created in the July 2016 Order. In light of the demand for mobile and mmW spectrum, the agency explained, there is no reason for artificial delay of new allocations. The Commission also rejected calls to consider using a Spectrum Access System in the 24 and 47 GHz bands to make spectrum available to users dynamically á la the unproven system still being implemented in the 3.5 GHz band for the Citizens Broadband Radio Service (“CBRS”) in a three-tiered sharing scheme adopted in 2015. The FCC also declined to adopt Microsoft’s proposal to authorize unlicensed use in the 24 GHz band, noting that with the fourteen gigahertz recently made available for unlicensed use in the 57-71 GHz band, the case for more unlicensed mmW spectrum was unconvincing, a conclusion that rippled throughout the recently adopted orders.

Further, in what may be a temporary setback for satellite proponents, the Commission declined to modify changes to the rules for FSS earth station siting in the 24 GHz band, but seeks comment on the issue in the Second FNPRM as part of a proposal to allow wider FSS use of the band for earth stations. This means that, for now, the 24.75-25.25 GHz band will only be available for individually-licensed FSS earth stations that meet specific requirements applicable to earth stations in other bands shared with UMFUS (e.g., limitations on population covered, number of earth station locations in a PEA, and a prohibition on earth stations in places where they would preclude terrestrial service to people or equipment that are in transit or are present at mass gatherings).

mmW Band Performance Metrics (Buildout-Based v. Usage-Based)

In its recent Spectrum Frontiers orders and Second FNPRM, the Commission continued to struggle with what are the appropriate performance metrics in the mmW bands to best promote spectrum utilization and preclude warehousing, particularly in anticipation that the bands may be used for a variety of diverse applications, not easily fitting into a one-size-fits-all approach. In the 28 and 39 GHz bands, the Commission adopted link-and-population based network buildout requirements in the July 2016 Order. While the Commission declined to adopt usage-based metrics at this time out of concerns that it would be “premature to predict the uses of innovative, IoT-type services with sufficient specificity to calculate a meaningful usage-based metric,” the FCC also noted that a putative licensee providing IoT-type services involving a network of smart devices and sensors could purport to fulfill the buildout performance metric “for an entire multi-county license area (in 39 GHz) with a deployment spanning a single building, by counting each connection between the sensors as a fixed point-to-point link.” For this reason, the Commission refined the definition of a “fixed point-to-point link” based on power levels (transmitter powers exceeding +43 dBm) to prevent this single-building outcome by distinguishing “traditional” links from most sensor and device connections in IoT-based networks.

As the Second Report and Order explains, licensees using non-qualifying low-power connections will need to “rely on another part of their network to demonstrate buildout (e.g., mobile area coverage or higher-power fixed backhaul links)” or, barring that, convince the Commission in the Second FNPRM phase of the Spectrum Frontiers proceeding to convince the agency to include a more suitable performance metric alternative for “non-traditional” deployments of UMFUS spectrum.

Mobile Spectrum Aggregation Policies in the mmW Bands

While the Commission in its June 2016 Order adopted a 1250 megahertz aggregate spectrum limit for UMFUS licensees in any given location for spectrum in the 28, 37, and 39 GHz bands in combination, the Commission, taking a more market-based approach than its predecessor rejected requests by T-Mobile and other wireless carriers that it also adopt a generally applicable pre-auction spectrum holdings limit to apply in the 24 and 47 GHz bands. Rather than adopt a pre-auction limit for the new bands, the Commission noted that it would respond to specific competitive concerns attributable to spectrum holdings concentrations on a case-by-case basis if they arose, underscoring its desire to not inhibit licensee flexibility to participate fully in the auctions. The Second Report and Order reflects the Commission’s confidence that, because the spectrum in the 24 and 47 GHz bands would be available in a number of frequency block sizes, the results of the eventual auctions will be less likely to concentrate spectrum in a small number of winners.

While the Commission declined to adopt a pre-auction limit for the 24 and 47 GHz bands, it did resolve to include these two new bands as part of the previously-adopted mmW spectrum threshold (in the 28, 37, and 39 GHz bands) for reviewing proposed secondary market transactions. Specifically, the Commission adopted a secondary market mmW spectrum threshold of 1850 megahertz that will be used to identify those markets that may warrant further competitive analysis in anticipation of secondary market transactions involving licenses in one or more of the five UMFUS bands.

Opportunity for Unlicensed Aeronautical Operations in the 60 GHz Band

The Second Report and Order amended the Commission’s rules, subject to certain limits, to allow unlicensed operation aboard aircraft during flight in the 57-64 and 64-71 GHz bands (collectively, the “60 GHz band”). Until now, in Part 15 of the FCC’s Rules, there has been an across-the-board ban on unlicensed airborne and space operations in the 60 GHz band. The move for the first time to permit certain airborne operations was made to accommodate, but is not necessarily limited to, two applications -- broadband internet/entertainment access in closed networks on-board aircraft, and certain wireless avionics intra-communications (“WAIC”) applications, the latter of which connect two or more stations on a single aircraft and constitute exclusive closed on board networks required for the operation of the aircraft. Finding that use of the 60 GHz spectrum on board aircraft would not cause harmful interference to authorized services, including passive services used for weather forecasting data collection, the Commission determined to permit unlicensed use within the body/fuselage of most aircraft. However, the Commission specifically excluded unlicensed operation on aerostats, UAVs/UASs (unmanned aeronautical vehicles/unmanned aircraft systems, e.g., drones), toy and model aircraft, and other aircraft where there would not be natural shielding (i.e., from an encompassing fuselage). The FCC also explained that operation of 60 GHz transmitters, i.e., in WAIC applications, on the outside of an aircraft body/fuselage while airborne would continue to be banned. Addressing certain operational and technical details, the Commission declined to impose new strict out-of-band emissions (“OOBE”) limits at harmonic frequencies on the newly permitted airborne operations and found that the existing spurious emission limits in Section 15.255(c) of the Rules would be sufficient to protect passive services in the 60 GHz band.

Rejection of Proposals to Extend the E-Band Uses to Mobile and Unlicensed Operations

The FCC, in the Memorandum Order, preserved the existing fixed-link licensing and registration regime in the 71-76 and 81-86 GHz bands (collectively, the “E-Band”) and declined adopting flexible mobile use rules in the lower E-Band or allowing indoor-only unlicensed operations in either of these two bands. In the latter case, given the perceived risks of interference to existing fixed uses, the Commission opined that additional studies are warranted before considering indoor unlicensed use in the bands. As further justification, the November 2017 Orders concluded that the availability of fourteen continuous gigahertz immediately below the 71 GHz band reduces any urgency for unlicensed authorization in the E Band. The FCC also observed that no equipment in the nearby 95 GHz band had been authorized as of June 2017, suggesting it would be premature to extend the rules for the “yet-to-be successful [unlicensed] service” to the E-band, especially when it already supports “a thriving millimeter wave [fixed] service.”

Noting the suitability of fixed operations in the E-Band to support 5G and other uses, the Commission noted the existence of several rule modification proposals pending in its Wireless Backhaul proceeding (WT Docket No. 10-153). These include possible adjustments to relax the antenna standards in some cases, allow +/- 45 degree polarization, and establish a channel plan, among other possible modifications to the private operational fixed microwave rules (Part 101). The Memorandum Order also observed that several parties have suggested future high altitude uses for these bands which the Commission proposes to consider in the Wireless Backhaul proceeding.

Confirming Core Satellite Bands above 40 GHz

The Commission confirmed 40-42 and 48.2-50.2 GHz as core satellite bands, declining to propose or authorize, respectively, fixed and mobile use in the bands. The Commission acted in light of the perceived importance to satellite operators having adequate spectrum to freely deploy uplink user terminals (in the 48.2-50.2 GHz range nationwide) without having to coordinate with terrestrial users.

37/39 GHz Band Satellite Matters

The Memorandum Order resolved a few issues raised in the First FNPRM regarding satellite operations in the 37/39 GHz bands. For example, the Commission declined to find that space stations can operate at a higher power flux density (“PFD”) without risking frustrating UMFUS licensee flexibility to provide a wide variety of fixed and mobile technologies. Noting that existing PFD limits were designed to protect fixed (not mobile) systems, the Commission emphasized that its rules adopted in the July 2016 Order are designed to promote other terrestrial uses as well, such as diverse IoT applications. The FCC also declined to adopt equivalent PFD limits as an alternative (or in addition) because any such limit set now “based on a 3GPP-suggested antenna pattern” could endanger development of “antenna reception technology for known applications or for applications that have not even been conceived.”

Further, the Commission abstained from permitting satellite earth station facilities in the 37/39 GHz bands (space-to-Earth) to be deployed ubiquitously or to serve individual consumers because of concerns these actions would have “the potential to result in a negative customer experience for satellite broadband consumers.” As one concern, the FCC reasoned that the buildout of terrestrial systems could require FSS operators to relinquish their use of channels below 40 GHz to serve user equipment, causing customers to “experience a reduction in service quality.” Rather, the agency concluded that, under the other rules it has adopted, the “FSS can use the 37.5-40 GHz band for a limited number of individually licensed earth stations.”

Non-Federal Use-or-Share UMFUS Requirements

In the First FNPRM, the FCC sought comment on potential opportunistic use of portions of an UMFUS license area when not in actual use by the licensee (“Use-or-Share”) and whether any Use-or-Share regime should be in addition to traditional performance requirements, or a replacement. The Commission declined to adopt Use-or-Share for multiple reasons, but added that the decision “does not limit or prejudge any actions we may take concerning sharing mechanisms with Federal users in shared bands” such as the 37.0-37.6 GHz band where a Federal/Non-Federal sharing regime is being developed.

Digital Station Identifiers

The Commission declined to require mmW band licensees or operators to transmit digital identifiers due to a lack of record support especially because characteristics of the high frequency bands at issue in the July 2016 Order and recently adopted Orders make interference less likely. At the same time, the FCC acknowledged its important ongoing role to identify and locate devices that cause harmful interference.

Miscellaneous Technical Issues

The Memorandum Order tackled several technical issues raised in the First FNPRM, in many cases choosing not to modify existing regulations. One, the Commission declined to adopt antenna height limits for UMFUS licensees (consistent with other higher frequency bands) to avoid precluding uses that could require higher antenna heights. By allowing licensees the flexibility to determine network configurations and when antenna downtilt may be necessary, the FCC hopes to promote diverse systems, relying on adjacent channel licensee coordination to manage the risks of interference. Similarly, the Commission refused to adopt a graduated framework with corresponding power reductions for UMFUS operations at increasing antenna heights.

Two, the agency found there was no need to revise existing coordination criteria at market boundaries for point-to-point operations in the mmW bands under existing Part 30 and Part 101 rules.

Three, although the FCC acknowledged that power scaling could potentially help limit interference among UMFUS providers and other services using the mmW bands, it maintained current power limit rules for mobile and transportable licensee classes without scaling. Noting that other methods can contribute to limiting interference, e.g., power control, and that UMFUS licensees will act to reduce interference within their own network, the Commission found that the establishment of power scaling factors could have the undesirable result of thwarting new use cases and broad development of next generation devices.

Four, the Commission found no need for minimum bandwidth requirements, expressing concern that such requirements could preclude use of the mmW bands to facilitate data exchange for multitudinous devices with different bandwidth requirements serving diverse user applications.

Affirmation of Risk-Based Interference Assessments

The Commission reiterated its endorsement of risk-based sharing analyses. It chose not to adopt a standard sharing propagation model, opting to retain flexibility when analyzing sharing in the mmW bands depending on the particular operational environment, the technologies deployed, and interference paths. But, as a general matter, the Commission underscored a preference for “models and scenarios that consider a statistical probability of interference based on deployment, propagation, and usage scenarios as opposed to a worse case approach,”.

One related note is that the Commission underscored in the Second Report and Order that, under the rules, harmful interference is defined not to protect against isolated occurrences, but only against interference that “seriously degrades, obstructs, or repeatedly interrupts.” In other words, in managing the spectrum, the Commission will lean toward a risk-based interference analysis rather than a worst-case assessment. Existing and would-be users of the spectrum should keep this in mind as the Commission and the National Telecommunications and Information Administration (“NTIA”) increasingly look to implement spectrum sharing frameworks to meet the growing needs of a variety of industries, researchers, and federal agencies that rely on access to electromagnetic spectrum.

Reconsideration of the July 2016 Order

The Order on Reconsideration addressed the petitions for reconsideration of the July 2016 Order, the majority of which were brought by members of the satellite industry. By and large, the Commission affirmed its earlier actions, although it added some additional authority for earth station siting and removed the previous Commission’s security plan requirements.

• Security Plan Requirements for UMFUS Licensees: In a victory for the commercial mobile industry, the Commission vacated its regulations adopted in July 2016 that had obligated UMFUS licensees to submit security plans and related information to the FCC before commencing operation indicating how confidentiality, integrity, and availability principles are applied in their network security designs. While acknowledging the importance of network security, the Commission believed more flexibility should be explored as a next step without imposing the burden of premature regulation “which could slow the development of innovative 5G services.” As an alternative to regulation, the Commission will seek industry input and voluntary adoption of measures through the Communications Security, Reliability, and Interoperability Council (“CSRIC”) process. In particular, the Commission is looking for CSRIC to identify risks for 5G network reliability and security and develop best practices to mitigate them as a precursor to potential future action, if and as needed.
• Earth Station Siting: On the whole, the Commission denied requests of the satellite industry to expand the options for siting earth stations in the 28, 37, and 39 GHz bands. But it also modified the rules in certain circumstances to expand those opportunities.

· First, the FCC rejected the request to increase the 0.1 percent population limit for earth station locations to 0.2 percent in larger markets. But, in smaller markets, the Commission concluded that maintenance of the 0.1 percent limit could drive earth station siting towards more heavily populated places and centers of commercial activity. As a result the Commission adopted a modified version of a proposal made by SES/O3b to provide additional flexibility in second- and third-tier markets in both the 28 and 37/39 GHz bands based on population size while maintaining the primacy of UMFUS in the bands.

· Second, the Commission denied requests to relax the additional limits on earth station siting along major transport corridors, ports, and areas where there is high demand for terrestrial service using mmW bands, such as major event venues, residential areas, and business centers. At the same time, the FCC clarified the types of roads that earth station siting should avoid: interstate highways, other freeways and expressways, and other principal arterial roadways. The Order on Reconsideration also specified that “major event venues” include “any location where large numbers of people could gather on a regular basis in a setting where they would expect to use wireless service” without adopting a minimum size threshold and underscoring an expectation that UMFUS and satellite licenses will work cooperatively to identify and avoid conflicts at major event venues.

· Third, the July 2016 Order restricted the number of earth station locations that do not have to protect terrestrial services to three per county in the 28 GHz band and three per PEA in the 37/39 GHz bands. The Order on Reconsideration declined to eliminate this limit in the 28 GHz bands as the satellite industry had requested. But in the 37/39 GHz bands, where UMFUS is licensed on a PEA basis and the FSS allocation is space-to-Earth, the Commission reached a different conclusion. Based on new satellite-industry-participant analyses indicating that smaller zones are needed to protect FSS earth stations from UMFUS-sourced interference, the FCC increased the permissible number of earth station locations in the 37/39 GHz band to fifteen per PEA and three per county.

· Fourth, the Commission took the opportunity to clarify that its limits were based on earth station locations, not earth stations per se, allowing additional earth stations as long as they comply with applicable contours and other earth station siting limits in the rules.

• Status of FSS in the 28 GHz Band. The FCC maintained the secondary status of FSS in the 28 GHz band, denying the petition for reconsideration of the Satellite Industry Association (“SIA”)
• Aggregate Interference in the 28 GHz Band. In response to the renewed request of satellite system operators to have the Commission on reconsideration set an overall limit on aggregate interference to satellite receivers in the 28 GHz band, the FCC declined to act. The principal reason for doing so cited in the Order on Reconsideration was that limits would be “inconsistent with [the FCC’s] goal of providing UMFUS licensees with a flexible rules framework that could allow them to provide a variety of services” by avoiding rules that “would risk preventing licensees from developing new services to meet market demand.” The Commission also reiterated that the rules adopted in the July 2016 Order provide more protection to other countries’ satellites than is required by ITU rules.
• Base Station Power Limits. The Commission declined Boeing’s petition for reconsideration seeking tighter power limits applicable to UMFUS base station transmitters in large part because the FCC believes UMFUS facilities will have incentives to use the minimum power necessary and out of concern that tighter limits would frustrate the deployment of a wide variety of mmW technologies.
• Base Station Location Disclosure: The Order on Reconsideration declined the request of EchoStar/Inmarsat and SES/O3b to mandate a database of UMFUS facilities to facilitate FSS/UMFUS coordination because of anticipated burdens on UMFUS licensees were they required to maintain and update information on each deployment. The Commission observed that the rules require UMFUS licensees to specify technical details relevant to any objection to proposed earth station locations.
• Mobile Use of the 64-71 GHz Band: The Order on Reconsideration affirmed the 2016 decision to authorize unlicensed operations across the entire 64-71 GHz band and declined to adopt a policy of “gigahertz parity” between licensed mobile and unlicensed operations. The FCC rejected calls to make part of the 64-71 GHz band available for licensed mobile operations.
• Mobile In-Band Spectrum Holding Limits: The FCC denied CCA’s request for reconsideration to adopt in-band spectrum holdings limits within the 28 and 37/39 GHz bands.
• License Area Sizes in the 28 and 37/39 GHz Bands: Rejecting petitions for reconsideration, the Commission maintained the county-sized licensing areas in the 28 GHz band and the PEA-sized license areas in the 37/39 GHz bands.

• Performance Metrics for Incumbent UMFUS Licensees: In the July 2016 Order, the Commission ruled that existing licensees in the 28 GHz and 39 GHz bands that complied with performance requirements in the prior license term (under Part 101 of the Rules) were required to meet the new performance requirements applicable to UMFUS licensees under Part 30 by June 1, 2024. The Order on Reconsideration declined to grant additional relief to incumbent licensees for lack of new evidence and arguments and in part because the Commission found that its estimate that mmW equipment would become available in 2020 “may have been pessimistic.” Rather, based on recent developments, the FCC believes licensees will have sufficient time to meet the performance requirements by 2024.
• Splitting of the 28 GHz Band Licenses: The FCC retained the split of the A1 28 GHz band into two 425 megahertz licenses adopted in the July 2016 Order, rejecting Nextlink’s petition for reconsideration on this point. The Commission hoped smaller license blocks would “preserve competition.”

The Commission used the occasion to continue to dig deeper into the mmW regulatory framework by issuing a Second FNPRM. The Commission seeks comment on a number of issues to build on what it did in the July 2016 Order and the recently adopted trio of orders. Some of the principal areas where the Commission requests additional public input are as follows:

• FSS use of the 24 GHz Band: The FCC proposes to license FSS earth stations in 24.75-25.25 GHz band on a co-primary basis with UMFUS. Specifically the sub-band would become available for individually-licensed FSS earth stations meeting the same requirements applicable in other mmW bands shared with UMFUS, namely the limitations on population covered, restrictions on the number of earth station locations in a PEA, and a prohibition on locating earth stations that preclude UMFUS to people or equipment in transit or present at large events. The proposed changes would make this sub-band available for general FSS uplink operations without being limited to feeder links for 17/24 GHz broadcast satellite service (“BSS”) space stations. BSS feeder links under the proposal would not enjoy priority over other uses of FSS for earth stations in the U.S. or preclude other FSS stations from claiming protection from the BSS feeder link in the United States. The Second FNPRM also inquires about a number of other technical conforming changes to the rules concerning FSS and BSS in the sub-band.
• Aggregate Interference from UMFUS to FSS: The Second FNPRM recognizes that some parties may be concerned about potential for aggregate interference to space station receivers from UMFUS operations and asks whether any action is needed to address that potential.
• UMFUS Performance Requirements: Current metrics applicable to UMFUS are network-coverage oriented and predicated on limited options: fixed links, population-based area coverage, or some combination thereof. Acknowledging the difficulty of crafting an IoT-specific metric, as discussed above, the FCC seeks input “on whether to adopt a more traditional or other metric” to accommodate IoT-type applications in the mmW bands and encourage “innovative services.” The Second FNPRM suggests that a metric based on geographic coverage/presence could capture uses that offer meaningful service even if the deployment does not correspond to residential populations. The FCC specifically seeks comment on a metric based on “geographic area coverage of 25% of the license area” and an alternative metric based on “presence in 25% of subset units of the license area, such as census tracts, counties, or some other area.” The Commission selected the 25% level for consideration and comment in both cases “as an attempt to maintain parity between the requirements of this metric and the requirements of [the FCC’s] previously-established metric based on population coverage.” The Second FNPRM welcomes comment on the 25% level and invites views on other metrics that parties think might be more appropriate without raising artificial regulatory barriers, underscoring that any metric adopted to facilitate IoT deployment would be available to any UMFUS licensee regardless of the services provided. In other words, all metrics that would be available for use in the mmW bands would be non-service specific, so presumably the Commission would take into account whether any newly adopted metrics would lower the bar for services most likely to be deployed by licensee winners -- a difficult balancing act indeed.
• Aggregate Mobile Spectrum Holdings: The Commission proposes to eliminate the pre-auction limit of 1250 megahertz that July 2016 Order adopted for the 28, 37 and 39 GHz bands given that technological development in the mmW bands is “nascent” and more, “technically similar” mmW spectrum is being made available in the Spectrum Frontiers proceeding (i.e., in the 24 and 47 GHz bands). Commenters advocating retention of the pre-auction limit are asked to discuss “the likely effects of having two different policy frameworks applicable to mmW spectrum acquired at auction.” (As noted earlier, there is no pre-auction limit for the newly adopted 24 and 47 GHz UMFUS bands.) The Second FNPRM also inquires whether, without pre-auction limits, it is necessary to conduct a post-auction case-by-case review of applications for initial mmW licenses. Proponents are asked to discuss how and under what standards such a review should be conducted, as well as potential remedies if there are competitive concerns.
• Operability in the 24 GHz Band: In the July 2016 Order, the Commission required equipment operating in any part of the 28 GHz band to be capable of operating throughout the band. Similarly, for the 37 and 39 GHz bands taken as a whole. In the Second FNPRM, the Commission proposes to require equipment capable of operating anywhere within the 24 GHz band must be capable of operating in both of the UMFUS band segments.
• Additional mmW Bands for Flexible Terrestrial Use: The Second FNPRM observed that bands previously identified in the proceeding but not yet acted upon are still under consideration by the Commission, such as the 31.8-33.4, 42.0-42.5, and 50.4-52.6 GHz bands. The Commission invited additional comment on those bands and also on any “additional millimeter wave bands that the Commission should consider for flexible terrestrial wireless use, which have not been raised in the proceeding thus far.” Note that this request was made as part of a notice of proposed rulemaking and not part of a notice of inquiry, so presumably the Commission could, following the comment cycle, move straight to rules (at least as a theoretical matter), unlike the recent Mid-Band Spectrum Notice of Inquiry proceeding, where the bands under discussion will first require a later notice of proposed rulemaking before rules could be adopted. This request for comment is also noteworthy as it was not part of the public draft of the November 2017 Orders issued before the Commission’s November 16 Open Meeting.