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On August 10, 208, the FCC’s Office of Engineering and Technology released a Public Notice seeking comment on the rule changes resulting its 2015 rule-making regarding the 3.5 GHz band.  It’s unusual for the Commission to seek comment on rule changes that were adopted several years ago when it is not reconsidering those rules.  In this case, the Spectrum Pipeline Act requires the Commission to submit a report by November 2, 2018 regarding the 3.5 GHz band rule changes and also “proposals to promote and identify additional spectrum bands that can be shared between incumbent uses and new licensed and unlicensed services under such rules and identification of at least 1 gigahertz between 6 GHz and 57 GHz for such use.”

The 2015 3.5 GHz band Order was noteworthy because it created the concept of the Citizens Broadband Radio Service (“CBRS”).  An innovative approach, the CBRS uses priority tiers, an incumbent tier, an auctioned tier, and an unlicensed tier, to maximize investment in the band, while also promoting new technologies.  The Commission’s approach generated significant interest from rural and niche service providers and users that were excited to have a band suitable for high-capacity applications.

It will be interesting to see whether the FCC’s upcoming report will mention that since 2015 the Commission has reopened the CBRS proceeding to make the spectrum more palatable to large wireless carriers. Over the objections or critical infrastructure, rural providers, wireless ISPs, and others, the Commission has proposed to increase the size of licenses in the CBRS auctioned tier to more closely align with metro markets.  Concerns have been raised that such changes will foreclose the innovative uses the band was originally envisioned for.  The Commission’s revised 3.5 GHz rules are expected later this year.

Comments on the Public Notice are due September 11, 2018 and Reply Comments are due September 26, 2018.  For more information, please contact Greg Kunkle (kunkle@khlaw.com; 202.434.4178).

On July 14, 2016, the Federal Communications Commission released a Report Order and Further Notice of Proposed Rulemaking issuing service rules for four spectrum bands above 24 GHz. These bands are intended to be the future home for 5G wireless services and technologies currently being developed. The FCC’s new rules authorize mobile operations on a licensed basis in the 27.5-28.35 GHz, 38.6-40 GHz, and 37-38.6 GHz bands. The FCC also allocated the 64-71 GHz band for Part 15 use, which, when combined with the Part 15 57-64 GHz band will result in 14 GHz of spectrum for unlicensed operations such as WiGig service – approximately 15 times the amount of unlicensed spectrum available in all of the lower bands combined.

The massive amount of spectrum the FCC made available is newsworthy by itself. But perhaps just as important is the speed with which the FCC moved on its 5G spectrum item. Only 21 months ago the FCC commenced the 5G regulatory process by releasing a Notice of Inquiry seeking initial feedback on the future of 5G services. A year later, it issued a Notice of Proposed Rulemaking proposing to allocate spectrum and followed that in nine months with last week’s Report and Order. It was a very quick conclusion to a proceeding many initially projected would take several years. Because of its speed, the FCC established the United States as a world leader in spectrum availability for 5G services. To top it off, initial reactions to the Report and Order are overwhelmingly positive with both the wireless industry and consumer-focused public interest groups praising the FCC’s mix of licensed and unlicensed service rules.

In the Further Notice, the FCC sought comment on authorizing fixed and mobile service in several additional bands: 24.25-24.45 GHz, 24.75-25.25 GHz, 31.8-33 GHz, 42-42.5 GHz, the 47.2-50.2 GHz, 50.4-52.6 GHz, and the 71-76 GHz band together with the 81-86 GHz bands (70/80 GHz bands) and the bands above 95 GHz. The FCC proposed a three-tiered approach to licensing in the 70/80 GHz band similar to the rules recently adopted for the 3.5 GHz band. The proposed tiers are (1) Incumbent Access users, which would receive the highest level of protection; (2) Priority Access Licensees (PALs); and (3) General Authorized Access (GAA) users. Comments are due September 30 and Reply Comments are due October 31.

Commercial 5G services are not yet available. And, for its part, the FCC did not define what will constitute 5G. But the FCC has now established a sandbox within which industry can innovate. We’ll see what the future will bring.

Last week, the FAA finalized its rules for routine commercial use of small unmanned aircraft systems (drones).  The new rules govern the operation and certification of small drones weighing less than 55 pounds for non-hobby and non-recreational purposes.  The rules will permit UAS operations for applications such as the delivery of consumer goods, inspections of cell phone towers, bridges, pipelines, electric lines, and oil rigs, crop monitoring, search and rescue missions, research and development, and aerial photography, to name a few.  The rules will become effective 60 days after publication in the Federal Register.  For more information, please see Keller and Heckman’s Consumer Protection Connection blog post on this topic or contact Greg Kunkle (kunkle@khlaw.com; 202.434.4178).

2016 looks to be the year the Federal Communications Commission (FCC) will place its biggest bet on the value of spectrum and begin to see whether two novel approaches to spectrum management are hits or misses.

Later this year, the FCC will conduct its Broadcast Incentive Auction, whereby it will seek to transition a large amount of wireless spectrum from television broadcasters to wireless providers.  In a nutshell, the objective of the Incentive Auction is to incent TV broadcasters to sell their spectrum back to the FCC, which in turn will auction the spectrum to wireless carriers.  It’s a “never-been-done-before” type of endeavor with a big upside.   But it could also be an embarrassment if it doesn’t go as planned leaving one FCC Commissioner to state, he is “praying it is not a failure.”  The FCC’s willingness to go out on a limb shows the Commission sees a bigger risk in not addressing the Country’s increasing demand for spectrum by continuing to maintain the status quo.

The Broadcast Incentive Auction isn’t the only spectrum policy innovation that will play out this year. The FCC’s plan to implement a Citizen’s Broadband Radio Service (CBRS) in the 3.55-3.7 GHz band has garnered less attention from the press, but, if it works, it could prove valuable to multiple segments of the wireless industry.

Under its new CBRS rules, the Commission will largely turn management of the 150 MHz of spectrum at 3.55-3.7 GHz over to one or more yet-to-be-named third party database managers.  Those database managers would be responsible for dynamic assignment of operating parameters to users and licensees in real-time.  The band would be a mix of Federal incumbents, auctioned license winners, and unlicensed secondary users.

For their part, wireless carriers view the CBRS as providing access to a very large amount of spectrum that could be used for small cell and in-building coverage.  CBRS compatible chips in wireless devices would enable carriers to offload very high capacity applications from their wide area LTE networks in certain areas.  In theory, the dynamic channel assignment would allow more intensive use of the band than otherwise achievable through the conventional approach of exclusive licensing.

One criticism of the CBRS is that it replaces what had been a successful spectrum allocation at 3.65-3.7 GHz.  This band, which was allocated only less than ten years ago, was used by hundreds of licensees including wireless Internet Services Providers, electric utilities, oil and gas companies, and other industrial users for high-bandwidth services. It remains to be seen to what extent the CBRS will be suitable for these users.  One potential hurdle – if accessing the dynamic spectrum database requires critical infrastructure companies to connect sensitive control systems to the Internet, expect many of those entities to take their wireless applications to other bands due to cybersecurity concerns.

The CBRS is an experiment in spectrum policy.  As one Commissioner states, “Will it work? […] We will see.

The news has not been good for wireless start-up LightSquared as recent reports suggest it is running out of cash as key Federal agencies and departments maintain the company has not demonstrated that its proposed Wireless service will not interfere with critical GPS applications.

 Background

LightSquared started 2011 by celebrating the FCC’s decision to grant the company a waiver to use its L-Band Mobile Satellite Service spectrum for a next-generation terrestrial wireless broadband network.  Absent a waiver, LightSquared would only be permitted to use terrestrial base station transmitters to provide a service that was ancillary to a mobile satellite offering — for example, to fill in dead spots in satellite coverage caused by large buildings in urban areas.  The FCC’s strong interest in deploying Wireless broadband services drove the favorable FCC decision.

LightSquared seemed poised to become a major player in the Wireless broadband market after Sprint Nextel signed on as a partner and Airspan announced that it would use LightSquared’s spectrum for utility smart grid applications.

GPS Interference Concerns Persist

The celebration proved premature.  LightSquared’s L-Band spectrum is adjacent to the spectrum band relied on by millions of GPS devices, most of which have been engineered to be extremely sensitive in order to accurately receive and decode a geolocation signal sent from satellites circling thousands of miles above the Earth.  As a result, even though LightSquared does not actually transmit in the GPS spectrum band, its terrestrial network signal may appear millions of times stronger to a GPS device than an intended satellite transmission — potentially overwhelming GPS reception.

The FCC waiver was conditioned on LightSquared’s ability to show that its proposed network would not cause interference to GPS receivers.

Unfortunately, testing conducted over the summer of 2011 resulted in significant GPS interference prompting LightSquared to revise its deployment plans and causing the FCC to request additional testing and information about the system.

Boomberg is reporting that the leaked preliminary results of recent government testing show that LightSquared has not solved interference concerns and its proposed network could cause interference to “75%” of GPS devices.  In particular, the FAA found that LightSquared’s signals interfered with certain flight safety systems.  Potentially most damaging is the report’s conclusion that “No additional testing is required to confirm harmful interference exists,” indicating that LightSquared may be reaching the end of its rope.

For its part, LightSquared reacted strongly to the leaked results.  In a Press Statement from Martin Harriman, Executive Vice President of Ecosystem Development and Satellite Business, the company characterized the leaked government testing as “illegal”, called for “a full investigation” into the leak, and questioned the motives of those who discussed the information with the press.

LightSquared’s outrage over alleged leaks still pales when compared to the barrage of critical filings submitted to the FCC this year from diverse industries that rely heavily on GPS, such as electric utilities and agricultural equipment manufacturers.  Of course, the FCC will have the final say and indications are the Commission intends to act on the testing results sometime next year.

As reported recently in Business Insider, however, LightSquared is apparently staring at a looming cash flow problem, calling into question whether the company can survive long enough to see the FCC process through to a successful conclusion.

In response to the mounting opposition, LightSquared is adopting a more aggressive tactic against GPS interests.  On December 20, 2011, LightSquared filed a Petition with the FCC requesting a declaratory ruling that GPS users and manufacturers lack standing to complain about interference from LightSquared’s operations; GPS receivers have no right to adjacent band interference protection;  and GPS manufacturers should bear the costs of ensuring that adjacent band signals do not interfere with GPS devices.