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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

  • The FCC grants additional waivers and applications to allow Tribal entities to use 2.5 GHz band spectrum for commercial wireless services and extends the deadline for commercial entities to provide input on the auction.
    • On May 4, 2021, the FCC released an Order grating two waiver requests submitted by the Bear River Band of the Rohnerville Rancheria regarding the definition of eligible Tribal lands for purposes of obtaining 2.5 GHz band spectrum in the FCC’s Rural Tribal Priority Window.  Grant of the waivers will allow the Tribe to provide service on several parcels of trust land in Humboldt County, California, along with contiguous areas owned in fee; the “old Rohnerville Rancheria,” which is reservation land; and the area referred to as Basayo Village, which is 3.86 acres of fee land nearby in Fortuna, California.
    • The FCC granted on May 13, 2021, an additional 40 licenses in the 2.5 GHz band to help address rural Tribal connectivity needs.  The list of applications granted by state is available here, and the list of the same applications granted by applicant name is available here.  The FCC reports that, to date, the agency has granted 259 licenses in the 2.5 GHz band to help connect rural Tribal communities.
    • On May 17, 2021, the FCC released an Order granting a 10-day extension of the deadline for interested parties to submit reply comments on the procedures that will be used for the auction of 2.5 GHz band spectrum to commercial entities.  The initial reply comment deadline was May 17, 2021, and that was extended to May 27, 2021 in order to give commenters additional time to assess potential discrepancies between the FCC’s initial license inventory and commenters’ information regarding available licenses.
  • The FCC announces several actions to make mid-band spectrum in the 3.5 GHz band available for 5G wireless services in Puerto Rico, Guam, and American Samoa and assesses an interim default payment to an auction winner.
    • On May 7, 2021, the FCC released a Public Notice conditionally approving, in a “second wave” of approvals, three entities – Fairspectrum LLC, Nokia, and RED Technologies – as Spectrum Access System (“SAS”) administrators in the 3.5 GHz band.  All conditionally approved SAS administrators must submit their systems for compliance testing – in the lab and in the field – before final approval.
    • In addition, the FCC released a Public Notice approving new and updated Environmental Sensing Capability (“ESC”) sensor deployment and coverage plans of four ESC operators:  CommScope Inc., Google, Federated Wireless, Inc., and Key Bridge Wireless LLC, clearing the way for commercial service in Puerto Rico and Guam.
    • Finally, the FCC released a Public Notice expanding Federated Wireless’ certification to operate as a SAS administrator in American Samoa to include the 3550-3650 MHz band.  Federated Wireless was already certified as a SAS in American Samoa, but only for the 3650-3700 MHz portion of the band.
    • On May 14, 2021, the FCC released a Public Notice approving Google’s request to operate as a SAS in the 3.5 GHz band in American Samoa for the remainder of its five-year term, which commenced on January 27, 2020.
    • The FCC also assessed an interim default payment obligation on LocalLoop, Inc. for failing to make its final payment for the 122 Priority Access Licenses it won in the 3.5 GHz band auction.
  • The FCC seeks public input on petitions for reconsideration and a waiver of its decision to make 100 megahertz of mid-band spectrum in the 3.45 GHz band available for commercial 5G services and adopts a certification requirement for auction participants.
    • On May 20, 2021, the FCC released a Public Notice announcing that several parties filed petitions for reconsideration of certain portions of its decision to make 100 megahertz of spectrum in the 3.45-3.55 GHz (“3.45 GHz”) band available for full-power commercial wireless services across the contiguous United States, while also ensuring that existing federal users can have access to the spectrum on a protected basis where and when they need it.  Oppositions are due 15 days after Federal Register publication, with replies due 10 days after that. 
    • In addition, on May 7, 2021, the FCC released a Public Notice seeking comment on a request for waiver filed by Lockheed Martin, which seeks access to the 3.45 GHz band for its test facilities in upstate New York.  Comments and reply comments were due May 17, 2021, and May 24, 2021, respectively. 
    • On May 19, 2021, the FCC released a Public Notice adopting its proposal to require applicants participating in the upcoming auction of 3.45 GHz band spectrum to certify that they have read the Public Notice describing the procedures for the auction and familiarized themselves both with the auction procedures and the requirements for obtaining a license and operating facilities in the 3.45 GHz band.  The Public Notice states that a “second public notice adopting the procedures for Auction 110 will be released before the short-form filing deadline . . . .”
  • The FCC stays the effective date of the 4.9 GHz band leasing framework.
    • On May 27, 2021, the FCC released an Order granting a petition for stay filed by The Public Safety Spectrum Alliance, which requested that the FCC stay the implementation of its new leasing framework for the 4.9 GHz band, pending the resolution of its concurrently filed petition for reconsideration and other petitions.  Under the leasing regime adopted by the FCC, a single statewide licensee in each state would be permitted to lease some or all of its rights to the spectrum, which was previously dedicated for public safety use, to third parties for commercial operations.  The FCC determined to grant the stay because, among other reasons, use of the band on a state-by-state basis could create incentives for states to use the spectrum in ways that are not in the public interest.  FCC Commissioner Carr dissented, stating that the FCC’s decision will “return this spectrum to the broken framework of the past.”

5G Networks and Infrastructure

  • FCC Acting Chairwoman Rosenworcel commends the FCC’s progress on 5G security, but notes that the agency still has more work to do.
    • On May 3, 2021, FCC Acting Chairwoman Rosenworcel issued a statement on the second anniversary of the Prague Proposals – a set of 5G security recommendations that were agreed upon by representatives from 32 countries, the European Union, and NATO at the 2019 Prague 5G Security Conference.  Acting Chairwoman Rosenworcel stated that the FCC has made “real progress in advancing many of the recommendations of the Prague Proposals,” but also explained that the agency has “more work to do to ensure that our 5G future is safe and secure for all.”
  • The FCC requests comment on applications and procedures related to its reimbursement program for securing the Nation’s supply chain and is posed to take additional action regarding supply chain security.
    • On May 24, 2021, the FCC released a Public Notice seeking comment on the application and reimbursement filing processes for providers to obtain funding for removing and replacing certain equipment and services that pose a national security risk from their networks.  Appendix A to the Public Notice includes the information the FCC proposes to collect through an online portal from applicants seeking funding.  Appendix B includes the information the FCC would collect from approved applicants that submit reimbursement claims.  Comments are due June 23, 2021. 
    • On May 27, 2021, the FCC released a draft Notice of Proposed Rulemaking (“NPRM”) and Notice of Inquiry (“NOI”) that would, if adopted at the FCC’s June 17, 2021, open meeting, take steps to further secure communications networks and the U.S. supply chain from equipment and services that pose a risk to national security.  In particular, the NPRM would seek comment on prohibiting all future authorizations for equipment from manufacturers on the FCC’s Covered List of equipment and services that pose a national security risk.  The NPRM would also seek comment on whether to revise its equipment authorization exemption rules so that exemptions no longer apply to equipment currently on the Covered List and whether to revoke previously granted authorizations for equipment on the Covered List.  Finally, the NPRM would seek comment on requiring all FCC auction applicants to certify that their bids do not and will not rely on financial support from any entity the FCC has designated as a national security threat.  The NOI would seek comment on how the FCC can use its equipment authorization processes and rules to encourage manufacturers to consider cybersecurity standards and guidelines.  FCC Commissioner Carr applauded the draft item and the FCC (see also below) for moving swiftly to address “the loophole that Huawei, ZTE, and other entities are currently exploiting despite the FCC’s determination that they pose an unacceptable risk to our national security.”
  • The FCC plans to conduct a showcase for Open Radio Access Networks solutions.
    • The FCC announced that it will conduct an Open Radio Access Networks (“Open RAN”) Solutions Showcase on June 29, 2021, beginning at 9:30 am ET.  The showcase will feature vendors who, according to the FCC, will have equipment and services ready to be deployed by January 1, 2022.  The showcase will be available via webcast here.

Other Spectrum Matters

  • NTIA reports on spectrum sharing experiments to support 5G services.
    • On May 10, 2021, NTIA released a blog post reporting on experiments conducted by its Institute for Telecommunication Sciences (“ITS”) to develop solutions to enable dynamic spectrum sharing between commercial and government users.  It noted that tests were conducted in the 3 GHz band near Boulder, Colorado, using a U.S. Air Force high-power radar plane and the collection of data on the ground to understand how these systems might interact with thousands of terrestrial 5G receivers and transmitters.  It added that “ITS anticipates that the research with the Air Force will similarly lead to important solutions to enable dynamic spectrum sharing between Air Force airborne radars and 5G cellular services” and that “ITS will continue to provide the objective expertise and research engineering resources to help discover the answer in collaboration with all stakeholders.”
  • The FCC and NTIA release budget estimates for fiscal year 2022, including estimates related to upcoming auctions of spectrum for 5G services and spectrum sharing.
    • On May 28, 2021, the FCC released its FY 2022 Budget Estimates along with its Budget in Brief.  The FCC is requesting approximately $129 million for its spectrum auctions program for FY 2022 (its estimate for FY 2021 was approximately $134 million).  The FCC states that the requested funds will permit it to conduct additional auctions, including for the 3.45 GHz and 2.5 GHz bands.  It also notes that the FCC will reallocate bands made available in the Spectrum Frontiers proceeding – i.e., millimeter wave spectrum – to terrestrial wireless use and auction spectrum required by the Spectrum Pipeline Act.  The FCC adds that “[o]ther auctions that may continue to be a focus for the Commission in FY 2022 include re-auctions of certain licenses previously offered and not won or returned to the Commission (including AWS-3 and unsold 600 MHz licenses from the [Broadcast Incentive Auction]).”
    • NTIA released a blog post on June 1, 2021, on its budget, which allocates $38.7 million for advanced communications research, including $12 million in direct funding for communications research and an increase of $26.7 million for a new five-year research initiative called the Federal Advanced Communications Test Site (“FACTS”) project.  FACTS will be a research site used for open-air testing of wireless technologies to understand the characteristics of radar emissions and facilitate spectrum-sharing arrangements.  The budget also allocates $26.8 million for NTIA’s broadband programs, an increase of $10 million, and an additional $4 million to allow NTIA to contribute to securing the information and communications technology and services supply chain.

Legislative Efforts

  • The Senate introduces a bill that would close the loophole that currently allows carriers to use private funds to purchase and use equipment that poses a national security risk.
    • On May 24, 2021, Senators Rubio and Markey introduced the Secure Equipment Act of 2021, which would require the FCC to initiate a rulemaking proceeding to update its equipment authorization procedures.  Specifically, the bill would require the FCC to clarify that it will no longer approve equipment authorization applications for equipment produced by Huawei, ZTE, or other entities that pose an unacceptable risk to national security, even if the equipment was purchased by private funds (see also above).  The rules that the FCC adopted last year only apply to equipment purchased with federal funds.  FCC Commissioner Carr applauded the action, stating “Senator Rubio and Senator Markey are taking the quick and decisive action necessary to safeguard our national security.”  The bill is currently in committee.
  • The Senate introduces a bill that would promote the development of Open RAN technology.
    • On May 11, 2021, Senators Wicker and Hickenlooper introduced the Telecommunications Supply Chain Diversity Promotion Act.  If enacted, the bill would require NTIA to establish a testbed program to develop and demonstrate supply chain technologies.  The bill would authorize $20 million for the administration of the testbed program.  It would also establish a $30 million grant program to financially assist U.S. companies with participating in Open RAN standards-setting bodies, such as the 3rd Generation Partnership Project, the Alliance for Telecommunications Industry Solutions, and the O-RAN Alliance.  The bill is currently in committee.

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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.