FCC wraps up additional work on 3.5 GHz proceeding, but more remains

As we reported a year ago, the FCC has been hard at work developing the Citizens Broadband Radio Service in the 3550-3700 MHz (3.5 GHz) band. Under the new regulatory scheme, the Commission aims to try out a three-tiered access framework. Three different categories of users – incumbents, users holding Priority Access Licenses (PALs), and users with General Authorized Access (GAA) – will share the band under the control of a Spectrum Access System (SAS). The SAS is a database-manager-on-steroids that will allocate spectrum slots on the fly according to users’ respective priorities.

While last year’s order established many aspects of the new system, attentive readers will recall that more work was needed to flesh out important details. Now, after considering issues raised in a Second Further Notice of Proposed Rulemaking as well as numerous petitions for reconsideration, the Commission has finalized the remainder of the 3.5 GHz rules.

One of the more controversial elements of the Commission’s 2015 order involved limits on PALs. In particular, the FCC provided for a three-year PAL license term with no renewal expectancy. In a petition for reconsideration, CTIA questioned whether PALs subject to those limits would be sufficient to encourage investment in and use of this spectrum newly opened to expanded commercial use. The Commission was unmoved: the three-year term remains, as does the lack of renewal expectancy. Commissioner O’Rielly, among others, had been very vociferous in his view that the license term should be longer. In response to the majority’s decision to stick with its earlier decision on that point, he filed a partial dissent, insistent that “the band plan for 3.5 GHz is like a three-legged stool that could topple over because one key component is missing.” [Blogger’s observation: Frankly, here in the CommLawBlog bunker we tend to be in Commissioner O’Rielly’s camp on this one. Given the time and cost of building out, we wonder how many will opt out of using 3.5 GHz because their business models do not comport with limited assured access to spectrum. Time will tell.]

The Commission also addressed a second area of controversy: whether PALs will be awarded when there aren’t multiple applicants in a geographic area. Here, the Commission chose mostly to stand by its initial decision not to award uncontested PALs, but it softened that stance a bit. Now it will make an exception for rural areas, allowing the issuance of a PAL even when there is only one applicant and the competitive bidding process is not triggered. (What’s a “rural area”? It’s defined in Section 96.3 as “any Census Tract which is not located within, or overlapping: (1) A city, town, or incorporated area that has a population of greater than 20,000 inhabitants; or (2) An urbanized area contiguous and adjacent to a city or town that has a population of greater than 50,000 inhabitants.”) So as long as there is a single applicant for one or more PALs in a License Area within a Rural Area, the FCC will grant the license.

Score a partial win for Commissioner Pai on this one – both he and Commissioner O’Rielly, as well as a number of petitioners, pushed for the availability of PALs in every census tract even when there is only one interested entity. (Recall that spectrum unused by PAL will be available for General Authorized Access users.)

On the technical side, in response to several petitions for reconsideration, the Commission tweaked some of the band’s technical rules by:

  1. increasing the database response time to address incumbent interference, extending the SAS reconfiguration timeframe from 60 to 300 seconds;
  2. increasing the power (specifically, maximum allowable EIRP) for non-rural Category B devices (i.e., the Service’s higher-power devices);
  3. allowing emission power measurements to be performed using either RMS-detection or peak-detection methods; and
  4. permitting allowable interference to be calculated for the area within the PAL Protection Area (i.e., within its default protection contour), rather than along the borders of the PAL license area.

In the rules adopted in 2015, the Commission provided for “opportunistic access” by GAA users to PAL spectrum when that spectrum is not “in use” by a PAL licensee. In taking this “use it or share it” approach, though, it held off on defining “in use” until it could get more input through a further rulemaking since, obviously, the devil is in the details. Now we know: The Commission will allow PALs to self-report their operational boundaries (i.e., actual network deployment), but subject to an objective Default Protection Contour for the SAS administrators to use as the outer limit of the maximum area that any PAL Licensee may claim as its PAL Protection Area.

Another loose end left in the 2015 Order involved the secondary market rules for the 3.5 GHz band. To encourage a robust secondary market, the Commission has adopted a “light touch” leasing option that will provide an easier, more streamlined process (albeit one that places verification burdens on the SAS administrators). This fast-track leasing approach would even allow parties to arrange spectrum leases for very short durations, such as for a football game or concert, something atypical for the Commission but seemingly ideal for situations when additional spectrum is needed for special events.

The Commission also outlined how it will provide protection for Fixed Satellite Service (FSS) incumbents. We recommend that those of you interested in this issue sit down for a careful review of the 23 pages of the decision that address it. To summarize briefly, in order to obtain protection in the 3.5 GHz band, FSS licensees will have to be far more detailed in their reported spectrum use than has historically been the case. The Commission declined to adopt specific protection criteria for earth stations, but rather determined that protection should be “customized” based on information provided when FSS licensees register with the SAS. Worst case assumptions cannot be used. The databases must be capable of receiving and responding to reports of harmful interference to FSS earth stations.

So when can you expect to fire up your shiny new 3.5 GHz equipment? Probably not for another few years, unfortunately. Though testing of equipment is being done by the likes of Ericsson and Qualcomm, the FCC still must approve at least one SAS database administrator as well as the Environmental Sensing Capability (ESC) system that will be used to provide information to the SAS to protect federal radar incumbents. And the Commission will need to auction the PALs, although GAA license-by-rule use may occur before then.