The Federal Communications Commission (“FCC”) under Chairman Pai has been nothing if not relentless in its quest to seek out underused or vacant spectrum and repurpose it for 5G uses. To that end, the FCC has announced its tentative agenda for its September 30, 2020 open meeting and it includes some pre-holiday gifts for spectrum-hungry carriers. By two Report and Orders/Further Notices of Proposed Rulemaking (“NPRM”) the FCC is planning to make 150 MHz of prime mid-band spectrum available for commercial use. Having already reallocated the low hanging spectrum fruit which was free of incumbent users, the FCC is now increasingly having to look at evicting current users who are not making sufficient use of the spectrum to justify their incumbent status.
The first band is the 3.3 – 3.55 GHz band. This band is now sparsely populated by federal government defense radar users on a primary basis, private radiolocation and amateur operator users on a secondary basis, and experimental Special Temporary Authorities on a non-interfering interruptible basis. The FCC will move some of the incumbents to other nearby bands while amateur users will be left to use other available frequencies wherever they can find them. Some federal use will necessarily remain in the target 3.45 – 3.55 portion of the band, but the FCC and the National Telecommunications and Information Administration (“NTIA”) are confident that these operations can coexist with private operations as long as the special defense needs are satisfied. This will then make the 100 MHz between 3.45 and 3.55 available to be auctioned for private use.
Although this latter reallocation of this band is not a done deal – the NPRM seeks comment on the proposal – the FCC is sufficiently confident enough that the reallocation will take place that it is proposing not only the spectrum reallocation, but service rules and even auction procedures to speed the process of getting the spectrum into private hands. Typically, this process can involve multiple steps with separate NPRMs, comment cycles, and interim decisions before an auction is actually ready to take place. The later steps are now relatively routine and this NPRM offers no surprises. Here the FCC has consolidated several of these tiny steps into a single bound, which moves the process along refreshingly quickly.
The second band under consideration is the 4940 – 4990 MHz band. This band is currently restricted to public safety entities who make relatively sparing use of it. The FCC here is proposing the novel approach of having each state have a single “State Lessor” which would be authorized to lease the spectrum to any user – public safety or non-public safety. The State Lessor would designate a State Band Manager (possibly itself) to lease out spectrum to other public safety and commercial operators and make sure that all the sub-lessees play nicely together. In some respects the Manager is like the 700 MHz Guard Band manager concept because it delegates many of the FCC’s statutory duties such as resolving interference complaints and licensing spectrum lessees to a state or private entity. Whether the FCC can delegate its duties to other entities in this way is a metaphysical question that will concern thoughtful lawyers if this plan is adopted. In the meantime, the lack of affordable equipment and the problem of how to accommodate existing incumbents while making this 50 MHz of spectrum useful to others are major challenges that will have to be resolved if this interesting plan is to take flight.
We note that these rules and proposals have not yet been adopted by the FCC, but we do expect such action at the Commission’s upcoming meeting.