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What's New in 5G - June 2020

The next-generation of wireless technologies – known as 5G – is here.  Not only is it expected to offer network speeds that are up to 100 times faster than 4G LTE and reduce latency to nearly zero, it will allow networks to handle 100 times the number of connected devices, revolutionizing business and consumer connectivity and enabling the “Internet of Things.”  Leading policymakers – federal regulators and legislators – are making it a top priority to ensure that the wireless industry has the tools it needs to maintain U.S. leadership in commercial 5G deployments.  This blog provides monthly updates on FCC actions and Congressional efforts to win the race to 5G. 

Regulatory Actions and Initiatives 

COVID-19 Relief

  • Continuing to assist wireless service providers with easing the strain on their networks during the COVID-19 pandemic, the FCC granted special temporary authority to several entities to operate on additional spectrum.  
    • On May 29, 2020, the FCC announced that it granted an emergency request for special temporary authority (“STA”) to the Makah Tribe, which is located in the northwestern tip of Washington State, so that it can use unassigned spectrum in the 2.5 GHz band for wireless broadband service during the COVID-19 pandemic.  On May 11, 2020, the FCC granted STA to T-Mobile to access licensed spectrum in the 600 MHz band to meet increased network demand.  In addition, on May 4, 2020, the FCC announced that it granted additional requests for STA submitted by wireless Internet service providers (“WISPs”) to access spectrum in the 5.9 GHz band to help address the increased demand for broadband during COVID-19.  To date, the FCC has granted temporary authority to more than 100 WISPs, many of which are using the spectrum on an unlicensed basis to serve rural and suburban communities.  
       
  • Over 750 broadband and telephone providers extended their pledge to keep Americans connected during COVID-19.
    • The FCC announced on May 14, 2020 that, in response to a request by FCC Chairman Pai, 774 broadband and telephone providers have extended their pledge – which was originally set to expire on May 12, 2020 – to keep Americans connected through June 30, 2020.  Each of these companies has committed to:  (i) not terminate service to any residential or small business customers because of their inability to pay their bills due to the pandemic; (ii) waive any late fees; and (iii) open its Wi-Fi hotspots to any American who needs them.

Low-Band Spectrum

  • FCC Chairman Pai made a second request to Congress to repeal a requirement that the FCC reallocate spectrum used by public safety entities for commercial wireless services like 5G.  
    • On May 15, 2020, FCC Chairman Pai reiterated his 2019 call to Congress that it repeal the FCC’s mandate to auction spectrum in the 470-512 MHz band (“T-Band”) by 2021.  The FCC found that an auction of the T-Band is unlikely to yield sufficient revenues to cover the costs to relocate the hundreds of public safety users that use the band and could jeopardize public safety operations.  Nevertheless, on the same day, the FCC circulated a Notice of Proposed Rulemaking (a copy of which is not yet available), which would take the next steps to prepare the spectrum for auction if Congress does not repeal the T-Band mandate. 
       
  • The FCC made additional low-band spectrum available for the development of wireless broadband technologies and services, primarily for the transportation and utility industries.
    • On May 13, 2020, the FCC adopted an Order that makes available six megahertz of spectrum in the 900 MHz band for broadband services, enabling the next generation of mission-critical applications for a wide variety of entities, including electric, oil and gas, and water management utilities and transportation companies.  The 900 MHz band had traditionally supported two-way radio and specialized mobile radio (a cellular alternative) systems.  The FCC will make the spectrum available on a county-by-county basis through a negotiation-based mechanism that will allow for the acquisition, relocation, and protection of 900 MHz incumbents and licenses to be issued to eligible parties.

Mid-Band Spectrum

  • NTIA urged the FCC to reconsider its decision to approve license modification applications that would allow an entity to deploy industrial Internet of Things (“IIoT”) services in satellite spectrum adjacent to GPS operations.
    • In the wake of the FCC’s April 2020 decision to allow Ligado Networks LLC (“Ligado”) to deploy a mobile broadband network in the 1526-1536 MHz, 1627.5-1637.5 MHz, and 1646.5-1656.5 MHz bands, principally for IIoT, NTIA submitted a Petition for Reconsideration urging the FCC to rescind its Order.  Among other things, NTIA noted that Ligado’s operations will harm 1 million GPS receivers in the Department of Defense’s inventory, and the FCC’s decision represents “an unexplained break from the healthy respect” that the agency had generally received from the FCC.  NTIA also submitted a Petition for Stay requesting that Ligado not be allowed to proceed until NTIA’s Petition for Reconsideration is addressed and concerns about harmful interference to GPS devices are resolved.  Several other parties have submitted similar petitions, and members of Congress have expressed concern as well.  On May 26, 2020, FCC Chairman Pai released a letter, emphasizing the importance of the decision in supporting the Nation’s leadership in 5G and noting that the FCC placed conditions on Ligado’s operations to ensure GPS devices can continue to be protected from harmful interference.  
       
  • FCC activity on mid-band spectrum in the 3.5 GHz band continued as the agency prepares to auction the spectrum for 5G services.
    • On May 5, 2020, the FCC released an Order granting requests for waiver filed by Comcast and Midcontinent Communications (“Midco”) so that they can file separate applications to participate in the auction for 3.5 GHz band licenses (“Auction 105”).  Waiver was required because Comcast has a general partnership interest in Midco, and the FCC’s rules prohibit commonly controlled entities from participating separately in an auction.  Additionally, on May 18, 2020, the FCC released a Public Notice with updated population data for 95 license areas that will be included in Auction 105, which will impact the bidding units and upfront payments for those areas.  The population data has been corrected for license areas in the following:  American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands, as well as for three areas in Alaska and one area in Virginia.  Bidding for Auction 105 is scheduled to begin on July 23, 2020. 
       
  • Members of the satellite industry are challenging the FCC’s decision to reallocate and auction mid-band spectrum in the 3.7-4.2 GHz band for next-generation wireless services in the D.C. Circuit and at the FCC.  
    • On April 28, 2020, PSSI Global Services, L.L.C. filed a Petition for Review of the FCC’s C-band Order, which reallocated the 3.7-3.98 GHz portion of the 3.7-4.2 GHz band (“C-band”) for 5G wireless services, in the U.S. Court of Appeals for the D.C. Circuit.  Similarly, on May 1, 2020, ABS Global Ltd., Empresa Argentina de Soluciones Satelitales S.A., Hispamar Satelites S.A., and Hispasat S.A. (together, the “Small Satellite Operators) filed a Petition for Review and, on May 27, 2020, SES Americom filed a Petition for Review at the D.C. Circuit.  The Petitions have been consolidated into one proceeding, and the court has directed PSSI Global Services, L.L.C. and the Small Satellite Operators to file their docketing statement form and statement of issues to be raised by June 3, 2020.  The court directed SES Americom to file the same documents by June 26, 2020.  AT&T, CTIA, SES Americom, and Verizon also filed motions to intervene in the D.C. Circuit proceeding, all on the side of the FCC.  Additionally, the Small Satellite Operators filed a Joint Petition to Stay at the FCC, asking the agency to stay the C-band Order, pending judicial review, in order to prevent irreparable harm to the Small Satellite Operators who will not be compensated from relocating from the band.  Commenting parties have generally opposed the stay, urging the FCC to proceed as scheduled, including commencing an auction of the spectrum on December 8, 2020.

High-Band Spectrum

  • The FCC is considering an item to explore innovative uses of the 71-76 GHz, 81-86 GHz, 92-94 GHz, and 94.1-95 GHz bands (the “70/80/90 GHz bands”) to support 5G services.
    • On May 19, 2020, the FCC released a draft Notice of Proposed Rulemaking and Order that would seek comment on changing the antenna standards for the 70 GHz and 80 GHz bands to allow smaller antennas, which will help facilitate the provision of wireless backhaul for 5G.  The item follows from a request by the Fixed Wireless Communications Coalition to modify the 70/80/90 GHz rules to allow smaller antennas and antennas with alternate polarization in the bands, and a request initiated by Aeronet Global Communications, Inc. to amend the bands’ rules to support maritime and aviation scheduled dynamic datalinks.  The Order portion of the item would deny Aviat Networks, Inc.’s and Fastback Networks’ request for waiver of the FCC’s antenna standards for the 70 GHz and 80 GHz bands since the FCC is considering the standards in this proceeding.  The FCC will consider the item at its June open meeting.

5G Infrastructure 

  • The FCC released a draft item that would clarify its rules relating to the modification of existing communications structures in preparation for 5G networks.
    • On May 19, 2020, the FCC released a draft Declaratory Ruling and Notice of Proposed Rulemaking that focuses on clarifying Section 6409(a) of the Spectrum Act of 2012, which streamlined local review of requests to modify existing wireless structures.  The item, also known as the 5G Upgrade Order, would clarify that the “shot clock” for review and approval of a modification application commences when (i) the applicant takes the first procedural step that the locality requires as part of its applicable regulatory review process, and (ii) the applicant submits documentation showing that the modification qualifies for streamlined review.  The item would also provide further clarification for what constitutes a “substantial change” under the FCC’s rules.  Finally, it would clarify that an environmental review is not required under the FCC’s rules if the FCC, an applicant, and any other affected parties have entered into a memorandum of agreement to mitigate effects on historic properties.  The FCC will consider the item at its June open meeting.

Legislative Efforts

  • The House Communications and Technology Subcommittee held a teleconference forum that focused on broadband and spectrum issues related to the COVID-19 pandemic.
    • On May 19, 2020, the House Communications and Technology Subcommittee of the Energy and Commerce Committee held a teleconference forum in which FCC Chairman Pai discussed the various measures the FCC has implemented to address the COVID-19 pandemic and ensure that Americans stay connected, including granting providers’ STA requests, awarding funding through the COVID-19 Telehealth Program, and working with the Federal Trade Commission to demand that gateway providers stop bringing COVID-19-related robocall scams into the U.S.
       
  • A bill was introduced in the House that would promote transparency in the sale and distribution of mobile applications owned by Chinese entities.
    • On May 19, 2020, Representative Kinzinger introduced the Internet Application Integrity and Disclosure Act.  If enacted, the bill would require people who maintain a website or sell or distribute a mobile application that is owned by the Chinese Communist Party or by a non-state owned entity located in China to disclose that fact to any individual who downloads or otherwise uses the website or application.  The bill would be enforced by the Federal Trade Commission.
       
  • A bill was introduced in the House and the Senate that would fund grants for wireless broadband deployment and provide emergency special temporary authority for wireless broadband service on Tribal lands and Hawaiian Home Lands. 
    • On May 7, 2020 and May 12, 2020, Senator Heinrich and Representative Haaland, respectively, introduced versions of the COVID-19 Disaster in Indian Country Act.  If enacted, the bill would direct the FCC to grant Indian tribes emergency STA to operate on tribal lands within ten days of receiving a request.  It would also make approximately $300 million in grants available for wireless broadband deployment and training through the U.S. Department of Agriculture’s Community Facility Grant Program.

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Authors

Russell H. Fox is a wireless communications attorney at Mintz. He guides clients through federal legislative, regulatory, and transactional matters. Russell also participates in FCC proceedings, negotiates spectrum agreements, and represents clients in spectrum auctions.

Angela Y. Kung

Of Counsel

Angela Y. Kung, Of Counsel at Mintz, draws on significant knowledge of the wireless regulatory landscape and experience at the FCC to advise clients on FCC rules and procedures. With particular expertise on spectrum use policies and auction procedures, she has shepherded Mintz's clients through several FCC auctions related to next-generation 5G wireless technologies and routinely advocates on behalf of clients to help ensure that the agency’s rules align with their interests.
Christen B'anca Glenn is a Mintz attorney who advises communications and technology clients on regulatory and compliance matters before the FCC. She also has trial and appellate litigation experience, including drafting pleadings, motions, and briefs.