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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

Low-Band Spectrum

  • The FCC terminates consideration of low-band spectrum used by public safety entities for commercial operations.
    • In the wake of the 2021 Consolidated Appropriations Act, which included the repeal of the statutory requirement that the FCC reallocate and auction the 470-512 MHz band (known as the T-Band), currently used by public safety entities, for commercial services by 2021, the FCC released an Order terminating its related proceeding.  It also issued a Public Notice announcing that it will resume the processing of certain applications for use of that spectrum for public safety and other services.

Mid-Band Spectrum

  • The FCC denies a request from NTIA to stay reconsideration of its decision to allow the L-band to be used by Ligado for terrestrial wireless services.
    • On January 19, 2021, the FCC released an Order denying a Petition for Stay filed by NTIA, which requested that the FCC stay its decision to allow Ligado Networks LLC (“Ligado”) to deploy a mobile broadband network in spectrum allocated for satellite services – the 1526-1536 MHz, 1627.5-1637.5 MHz, and 1646.5-1656.5 MHz bands (together the “L-band”) – pending NTIA’s Petition for Reconsideration of that decision.  The FCC found that NTIA’s request for stay failed to satisfy the four prongs that warrant a stay, including that NTIA would be irreparably injured without a stay and that it is likely to succeed on the merits.  The Commission will separately address the petitions for reconsideration filed by NTIA and others.
  • The FCC seeks comment on procedures to be used for the auction of the 2.5 GHz band for commercial services.
    • On January 13, 2021, the FCC released a Public Notice seeking comment on the procedures to be used for the auction of new geographic overlay licenses in the 2496-2690 MHz (“2.5 GHz”) band.  The FCC generally proposes to use its standard auction procedures.  It also seeks comment on two alternative auction formats for bidding:  (i) a single-round auction format with user-defined package bidding; and (ii) a simultaneous multiple-round auction format.  Comments and reply comments are due 60 and 75 days, respectively, after Federal Register publication, which has not yet occurred.
    • In addition, on January 14, 2021, the FCC announced that an additional 29 applications filed during the Rural Tribal Priority Window, which provided an opportunity for federally recognized Tribes to apply for 2.5 GHz band spectrum before it is made available for commercial services, were accepted for filing.  And on January 19, 2021, it issued waivers to the Ione Band of Miwok Indians and the Yocha Dehe Wintun Nation to allow off-reservation trust lands to be considered eligible Tribal lands for purposes of their applications submitted during the Rural Tribal Priority Window.
  • NTIA provides estimated costs of clearing federal incumbents from the 3.45-3.55 GHz band so that it may be auctioned for commercial services.
    • On January 15, 2021, NTIA announced that it provided notice to the FCC, Congress, and the Government Accountability Office regarding the estimated relocation and sharing costs that would be incurred by federal incumbents in order to make the 3.45-3.55 GHz band available for commercial services, as well as their timelines for doing so.  The estimated costs total approximately $13.4 billion, and the longest estimated relocation timeline, which was provided by the Air Force, is at 138 months.  Accordingly, any FCC auction of the spectrum for commercial use must raise at least $15 billion (approximately 110 percent of the estimated relocation costs) to be valid.
  •  The FCC announces that it has accepted additional applications for spectrum in the 3.5 GHz band for filing.
    • On December 19, 2020, the FCC released a Public Notice announcing that it has, upon initial review, found the applications listed here that were filed by bidders that won spectrum in the 3.5 GHz band to be acceptable for filing.  Interested parties had an opportunity to object to the applications by January 29, 2021.  The FCC will release a separate Public Notice to announce when the applications have been granted and the licenses will be issued.
  • The FCC’s largest auction of mid-band spectrum for 5G services concludes, and the FCC takes additional action to clear the spectrum.
    • On January 15, 2021, the FCC announced that the first phase (or clock phase) of the auction for spectrum in the 3.7-4.2 GHz band, known as the C-band, concluded.  The auction made available 280 megahertz of spectrum, and bidders won all of the 5,684 blocks that were up for bid.  The C-band auction is now the highest grossing spectrum auction conducted by the FCC, raising more than $80.9 billion in gross proceeds.  The previous highest grossing spectrum auction was the AWS-3 auction, which raised $44.9 billion.
    • On January 26, 2021, the FCC released a Public Notice announcing that the second phase (or assignment phase) of the auction, where bidders will have an opportunity to bid on specific frequencies, will commence on February 8, 2021 and providing additional guidance on the process.  New Acting FCC Chairwoman Jessica Rosenworcel commented that “[t]his auction has exceeded expectations, and, at this point, we are pushing forward to get this critical piece of mid-band spectrum to market quickly, where it will help American consumers tap into next generation wireless services.”
    • As the FCC continues to oversee clearing of the C-band for commercial operations, it released a Public Notice notifying (i) operators of incumbent C-band earth station antennas that have been reported as inactive and (ii) operators of incumbent C-band earth stations that have not responded to communications from RSM US LLP, the C-band Relocation Coordinator, and/or the incumbent C-band satellite operators that they have 90 days (i.e., until April 19, 2021) to affirm the continued operation of their earth station antennas and the intent to participate in the C-band transition.  Operators that do not respond by the April 19, 2021 deadline will be deemed to have had the authorizations of those antennas automatically terminated by rule, meaning the authorizations will be removed from the FCC’s database and will not be entitled to protection from interference or eligible for reimbursement of any transition costs.

High-Band Spectrum

  • The FCC seeks public input on reallocating spectrum in the 12 GHz band for commercial wireless use.
    • On January 15, 2021, the FCC released a Notice of Proposed Rulemaking (“NPRM”) that seeks comment on adding a new or expanded terrestrial mobile allocation to the 12.2-12.7 GHz (the “12 GHz”) band, which is currently used for Direct Broadcast Satellite service, Multi-Channel Video and Data Distribution Service, and Fixed Satellite Service (space-to-Earth) limited to non-geostationary orbit systems (“NGSO FSS”).  The FCC seeks input on, among other things, whether adding a mobile service allocation throughout the band is consistent with Section 303(y) of the Communications Act, the technical parameters that would be appropriate for two-way communications and flexible use of the band, and modifying existing incumbent licenses in the band using the Commission’s Section 316 authority to allow increased terrestrial operational flexibility.  Comments and replies on the NPRM are due 30 and 60 days, respectively, after Federal Register publication, which has not yet occurred. 
  • The FCC sets a pleading cycle for the Satellite Industry Association’s Petition for Rulemaking requesting satellite use of the 51.4-52.4 GHz band, which is currently allocated for wireless use.
    • On January 7, 2021, the FCC released a Public Notice establishing a pleading cycle for the Satellite Industry Association’s Petition for Rulemaking, which asks the Commission to adopt a domestic allocation in the 51.4-52.4 GHz band for NGSO FSS networks.  The 51.4-52.4 GHz band is currently allocated for terrestrial fixed and mobile wireless services.  Comments on the petition are due February 8, 2021.

Other Spectrum Matters

  • NTIA releases a report on efforts to make spectrum available for commercial services.
    • On January 7, 2021, NTIA announced the release of its Second Annual Report on the Status of Spectrum Sharing, covering past and present efforts to reallocate spectrum in 23 spectrum band segments below 95 GHz.  It provides details on 14 low- and mid-range spectrum bands that have been repurposed, or remain under consideration for repurposing, and finds that NTIA and the FCC have made significant spectrum available for commercial wireless services, including mid-band spectrum for 5G, during the past four years.  Specifically, the report notes that 1,130.5 megahertz of licensed mid-band spectrum and 15,215 megahertz of unlicensed spectrum have been made available.  It also discusses U.S. action on the 3.5 GHz band, C-band, and 3.45-3.55 GHz band – together creating 530 megahertz of mid-band spectrum available for 5G and beyond.

5G Networks and Infrastructure

  • NTIA seeks recommendations on developing a 5G ecosystem.
    • On January 11, 2021, NTIA announced and released, in collaboration with the Department of Defense (“DoD”), a Notice of Inquiry, seeking comment and recommendations on the creation of a 5G Challenge to accelerate the development of an open 5G stack ecosystem for DoD missions.  Comments are due 5:00 pm ET on February 10.
  • FCC takes further action aimed at promoting 5G and broadband infrastructure deployment.
    • In an Order released January 7, 2021, the FCC revised its rules addressing over-the-air-reception-devices (“OTARD”), to “help spur the rapid deployment of fixed wireless networks for 5G and other fixed wireless high-speed Internet services.”  The OTARD rules limit state or local laws, restrictions, or regulations “that impair the ability of antenna users to install, maintain, or use over-the-air-reception devices.”  The FCC’s revision expands the rules to cover hub and relay antennas used for the distribution of fixed wireless broadband-only service to multiple customer locations, as long as the antenna is installed on property in which the antenna user has exclusive control and an ownership or leasehold interest.
  • FCC clarifies a pole replacement cost allocation question.
    • In a Declaratory Ruling released January 19, 2021, the FCC clarified that under its pole attachment rules, requesting attachers cannot be required to pay the entire cost of pole replacements if the pole replacement is not necessitated solely by that new attachment.  Thus, when a new attachment – including for example a small wireless facility – is proposed on an existing pole that already requires replacement (whether because it is on the utility’s replacement schedule already, or has existing safety or construction non-compliance issues), the new attacher cannot be required to pay the full cost of replacement.

5G Funding

  • The FCC seeks comment on parties urging changes to the 5G Fund established to support 5G services in rural areas and takes the next step to collect more precise broadband data.
    • On January 6, 2021, the FCC released a Public Notice requesting comment on five petitions for reconsideration of its decision establishing a 5G Fund for Rural America.  The 5G Fund will make available up to $9 billion in federal subsidies over 10 years to bring voice and 5G broadband services to unserved rural areas.  The Public Notice was published in the Federal Register on January 22, 2021, making oppositions to the petitions due by February 8, 2021 and replies to an opposition due by February 16, 2021.
    • On January 19, 2021, the FCC announced that it adopted additional rules and reporting requirements for its Digital Opportunity Data Collection.  Among other things, the Order creates standards for collecting broadband deployment data, establishes a process for challenging coverage map data, and sets standards for enforcing data collection requirements.  The additional rules and requirements are intended to ensure that the FCC collects precise and accurate broadband deployment data as it continues its efforts to close the digital divide.
    • In addition, on January 19, 2021, the FCC announced that it released its annual Broadband Deployment Report, which shows that “significant progress has been made to bridge the digital divide.”  According to now-former FCC Chairman Ajit Pai (the Report was issued before he stepped down), “at the end of 2019, mobile providers offered 5G service to approximately 60% of Americans, a figure that is substantially higher today.”

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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.

T. Scott Thompson

Member / Chair, Communications Infrastructure Litigation Practice

Scott serves as Chair of Mintz’s Communications Infrastructure Litigation Practice and represents clients in legal, regulatory, and policy matters involving telecommunications networks.

Angela Y. Kung

Member / Chair, Technology, Communications & Media Practice

Angela Y. Kung 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.
Daniel Reing is a Member in the Mintz Technology, Communications & Media Practice who provides strategic regulatory and litigation counsel to benefit companies in the communications industry. Clients in the cable, broadband, and wireless sectors rely on Dan’s counsel to help advance key projects and achieve their goals.
Christen B'anca Glenn is a Mintz attorney who advises communications and technology clients on regulatory and compliance matters before the FCC.