Congress increasingly focused on dictating spectrum use.

capitol-unlicensed search-1If you have your eye on some spectrum for a particular use, you’d likely go to the FCC and participate in a rulemaking proceeding, or perhaps initiate one, proposing that the rules be revised to specify that your preferred spectrum could be used for your preferred use. Maybe others would object, maybe they wouldn’t. (Who are we kidding? Someone most certainly would.) But in the end, the Commission would determine whether, and how, to modify its spectrum allocations.

Increasingly, however, the FCC’s ability to do this is shaped by Congress. Take, for example, the 2015 rulemaking involving the future use of the 600 MHz band. The Commission was not writing on a blank slate. To the contrary, its approach had largely been determined five years earlier – by Congress. The 2010 Spectrum Act dictated that unlicensed uses had to be accommodated, but only in spectrum designated as “white spaces” and guard bands. Moreover, unlicensed operation in the guard bands would be permitted only when it “would not cause harmful interference to licensed services.” Working within these Congressionally-imposed limits, the Commission worked out specific technical rules for unlicensed use by both white space devices and unlicensed wireless microphones. But it wasn’t a pretty process, as evidenced by the fact that ten separate petitions seeking reconsideration of one or more aspects of the decision are currently pending.

Now, while the FCC may have more than 75 years of experience with spectrum allocations, in our overall governmental organization Congress out-ranks the FCC. So if Congress wants to tell the FCC which spectrum can be put to which uses, the FCC must comply with Congress’s dictates. For entrepreneurs looking to stake their claim to certain spectrum, that means that Congress, rather than the FCC, may be the place to go.

And right now, one way to do it is via the MOBILE NOW Act (the acronym stands for the “Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless Act”), passed by the Senate Commerce Committee and likely soon to be “hotlined” for a vote on the Senate floor. (“Hotlining” is an expedited process by which bills are considered in the Senate under unanimous consent.) The Act directs the NTIA and the FCC to make more spectrum available – a minimum of 255 MHz of Federal and non-Federal spectrum below 6 GHz for mobile and fixed wireless broadband. Important to you spectrum coveters: the Act specifies what spectrum may be subject to exclusive licensing and what may be used on an unlicensed basis.

The MOBILE NOW Act is a major priority of the Senate Commerce Committee Chairman, John Thune (R-S.D.) (who is a co-sponsor, along with Bill Nelson (D-Fla.)) and is seen as one of the few bills to see serious consideration this Congress. As such, before the bill left the Commerce Committee, Senators added 12 separate amendments.

Among the bill’s key provisions:

Millimeter Wave Spectrum: NTIA (in consultation with the Commission) would be required to conduct a study of the impact that permitting mobile or fixed wireless operations on certain slices of Federal spectrum in the millimeter wave bands would have on Federal entities and operations. Within two years after the bill gets enacted, the FCC would have to initiate a rulemaking proceeding to consider service rules for authorizing wireless use (licensed and/or unlicensed) of that spectrum.

3 GHz: The Secretary of Commerce would have to report to the FCC and Congress (within 18 months of the bill’s enactment) on the feasibility of sharing the 3100-3550 band – and the FCC would have to do the same for the Secretary of Commerce and the Congress relative to the possible sharing of the 3700-4200 MHz band – with commercial wireless users, both licensed and unlicensed.

Unlicensed Service in Any Future Guard Bands: Guard bands established to protect frequencies to be allocated through future auctions would, where feasible, be opened for unlicensed services, provided that such unlicensed use would not cause harmful interference to licensed or Federal use.

Schatz National Unlicensed Plan: An amendment proposed by Brian Schatz (D-HI) and Jerry Moran (R-Kan.) – and approved by the Committee – would require the Commission, in cooperation with NTIA, to develop a national plan for increasing the availability of unlicensed spectrum, which plan would be submitted to Congress. The report would include NTIA recommendations for modifying the Spectrum Relocation Fund to facilitate the sharing of Federal users’ spectrum with unlicensed users.

Booker GAO Study of Unlicensed in Low Income Neighborhoods: Another amendment, proposed by Cory Booker (D-N.J.) and approved by the Committee, directs GAO to conduct a study on the availability of unlicensed spectrum and Wi-Fi in low-income neighborhoods. GAO would be required to investigate barriers to deployment and use in such neighborhoods, and make recommendations for increasing wireless adoption there.

Gardner 100 MHz for Unlicensed: Another Committee-approved amendment, sponsored by Senators Gardner (R-Colo.), Booker, Blumenthal (D-Conn.) and Rubio (R-Fla.), would specify that, of the spectrum to be freed up through the main provision of the bill, at least 100 MHz would be available for unlicensed use and an equivalent amount would be set aside for exclusive licensed commercial use (although that latter designation would be open to some FCC discretion to implement exclusive licensing “in a flexible manner”).

Conclusion With its repeated emphasis on increasing available spectrum for unlicensed uses, the MOBILE NOW Act signals Congress’s recognition of the increasing prevalence of unlicensed uses and the need for spectrum to serve those uses. Perhaps more importantly, the Act signals Congress’s willingness to require the FCC to provide for such spectrum in no uncertain terms.

And the MOBILE NOW Act is not likely to be the last such initiative. The demand curve for unlicensed spectrum is driving exponentially upwards. Spectrum will be needed to accommodate Internet of Things devices, connected and autonomous vehicles, smart cities, wearables, telemedicine applications – and an untold number of as yet unidentified other applications. Since previous efforts to free up spectrum have lagged behind the surge in demand, we can expect more legislation like this, and other further helpful nudges from our friends in Congress.

On one hand, this is a promising development for unlicensed users, because it opens up potential opportunities for entrepreneurs interested in assuring the availability of certain spectrum for their unlicensed needs. But on the other hand, spectrum may come in the wrong flavor, at least without effective lobbying. Influencing the legislative process could prove more efficient than similar efforts through the FCC’s rulemaking processes. That being the case, those who anticipate the need for unlicensed spectrum would do well to consult with allocations-savvy counsel experienced not only in the ways of the FCC, but also in the ways of Congress.