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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

Mid-Band Spectrum

  • The FCC adopts procedures for its next auction of mid-band spectrum for 5G services and provides additional detail on federal operations that will remain.
    • On June 9, 2021, the FCC’s Office of Economics and Analytics (“OEA”), jointly with the Wireless Telecommunications Bureau (“WTB”), released a Public Notice establishing the procedures to be used for the auction of new licenses in the 3.45-3.55 GHz (“3.45 GHz”) band for commercial wireless services.  The Public Notice generally adopts auction procedures that are similar to those used for past FCC spectrum auctions, with a few changes to lower bidding prices and adjust how frequencies will be assigned.  Applications to participate are due by 6:00 pm ET on July 21, 2021, and bidding is scheduled to begin on October 5, 2021.  In a News Release issued by the FCC, Acting Chairwoman Rosenworcel stated:  “This auction will bring us closer to 5G service that is fast, secure, resilient, and most importantly, available across the country.”
    • Prior to the release of the Public Notice establishing auction procedures, the FCC and National Telecommunications and Information Administration (“NTIA”) released a Public Notice outlining the coordination processes that will apply to the 33 Cooperative Planning Areas (“CPAs”) and 23 overlapping Periodic Use Areas (“PUAs”) where federal incumbent operations will remain in the 3.45 GHz band.  And on June 3, 2021, NTIA made available on its website a Workbook and Workbook Explanation prepared by the Department of Defense (“DoD”) that are designed to provide auction participants with information on potential impacts from DoD incumbent users to specific 3.45 GHz frequency blocks and market areas.  The website also includes Transition Plans that provide information about the costs and timelines for federal agencies transitioning out of the spectrum. 
    • On June 16, 2021, WTB and the FCC’s Office of Engineering and Technology (“OET”) issued an Order granting Lockheed Martin special temporary authority (“STA”) for a period of 180 days to operate in the 3.45-3.525 GHz segment of the 3.45 GHz band so that it may continue to conduct its Research, Development, Test & Evaluation operations at its Cazenovia and Liverpool, NY facilities to “develop and produce S-band radars that enable critical air, surface, and missile defense missions; space domain awareness; and counter-fire target acquisition missions for use by both the Department of Defense and U.S. allies abroad.”  As a result, WTB and OEA released a Public Notice announcing changes in the inventory of licenses that will be made available in the 3.45 GHz band auction. 
    • Finally, the FCC’s Public Notice announcing that several parties filed petitions for reconsideration of certain portions of the FCC’s decision to make the 3.45 GHz band available for full-power commercial wireless services was published in the Federal Register on June 3, 2021.  Oppositions to those petitions were due June 21, 2021, and replies were due July 1, 2021. 
  • The FCC accepts an additional application for spectrum in the 3.5 GHz band and continues to take action to support commercial wireless services in the band.
    • On June 23, 2021, the FCC’s WTB and OEA released a Public Notice announcing that an additional application submitted by Rio Broadband for licenses in the 3.5 GHz band, the auction for which concluded in August 2020, has been accepted for filing. 
    • In addition, WTB and OET released a Public Notice on June 21, 2021, extending the conditional authorization of Key Bridge’s Environmental Sensing Capability (“ESC”) for the 3.5 GHz band.  Key Bridge’s ESC was approved for commercial operation in July 2020, conditioned on the successful resubmission and laboratory testing of the latest version of its ESC software before December 31, 2020 (which was later extended to June 30, 2021).  Because Key Bridge has been unable access NTIA’s Institute for Telecommunication Sciences (“ITS”) lab in order to retest its ESC capabilities as a result of the COVID-19 pandemic, WTB and OET extended the deadline for Key Bridge to retest its ESC software to December 31, 2021.
  • The FCC updates its list of earth stations that may receive protections and relocation costs as it transitions spectrum in the 3.7-4.2 GHz band for commercial services.
    • On June 22, 2021, the FCC’s International Bureau released a Public Notice with an updated list of incumbent earth stations in the 3.7-4.2 GHz band (known as the C-band) that will receive relocation costs and continue to receive protections for their operations as the spectrum is transitioned to commercial 5G services.  The updated list takes into account earth stations that have been reported as no longer operational or have been unresponsive and includes a variety of changes such as address or coordinate corrections, registration assignments, and other ministerial updates.  
    • In addition, the International Bureau released an Order denying the requests of Back Porch and KTBS for their respective earth stations to be granted incumbent earth station status, but granting the requests of Maranatha Company, Cocola Company/Boise Telecasters, Prism Company, and WOW! Ohio to make limited corrections to their lump sum relocation cost elections.
    • Relatedly, on June 23, 2021, the FCC’s WTB released a Public Notice opening a window for C-band space station operators, which are responsible for relocating earth stations, to amend their Transition Plans to account for any updates, including the changes to the incumbent earth station list noted above.  The filing window will close on July 7, 2021. 

High-Band Spectrum

  • The FCC further postpones action on its evaluation of spectrum in the 12 GHz band for commercial wireless services.
    • On June 3, 2021, in response to requests from SpaceX, OneWeb, and others, the FCC released an Order extending the deadline for parties interested in submitting reply comments on the agency’s proceeding to evaluate use of the 12 GHz band for commercial services.  The initial reply comment deadline was June 30, 2021, and it was extended 30 days to July 7, 2021.

5G Networks and Infrastructure

  • The FCC and NTIA take additional action to evaluate Open RAN solutions in 5G networks.
    • On June 4, 2021, NTIA issued a press release announcing that ITS released a Broad Agency Announcement to procure prototype or commercial-off-the-shelf Open RAN equipment and software.  NTIA notes that this is part of an effort to test state-of-the-art Open RAN technology and that ITS will deploy the technology in its Communications Research and Innovation Network to evaluate performance, inter-vendor interoperability, and standard maturity compared with established RAN technologies.  Proposals are due July 6, 2021, and an initial review selection is anticipated in August 2021. 
    • On June 11, 2021, the FCC released a Public Notice announcing that the Open RAN Solutions Showcase has been rescheduled from June 29, 2021, to July 14-15, 2021.
  • The FCC adopts new marketing and importation rules to provide innovators with flexibility to develop and release new wireless devices. 
    • On June 17, 2021, the FCC adopted a Report and Order establishing new marketing and importation rules related to radiofrequency devices that will generally allow them to be marketed and imported (up to a certain amount) prior to completing the FCC’s equipment authorization process.  According to the FCC’s News Release, the new rules will allow parties “to engage in crowdfunding and other popular marketing campaigns and, in specific cases, to import devices still under equipment authorization review” while ensuring that “newly developed smartphones, wireless headphones, Wi-Fi routers, and other devices comply with FCC rules.”
  • The FCC releases draft rules related to removing and replacing equipment that pose a national security risk and commences its inquiry on network security requirements.
    • On June 22, 2021, the FCC released a draft Third Report and Order in the FCC’s rip-and-replace proceeding.  If adopted, the Order would, consistent with the Consolidation Appropriations Act of 2021, revise the rules for the Reimbursement Program the FCC established pursuant to the Secure and Trusted Communications Networks Act of 2019 to reimburse providers of advanced communications services for the costs incurred to remove, replace, and dispose of equipment and services that pose a national security risk.  The item will be considered at the FCC’s next open meeting on July 13, 2021.
    • On June 17, 2021, the FCC adopted a final Notice of Proposed Rulemaking and Notice of Inquiry seeking public input on potential revisions to its equipment authorization and auction rules to further secure communications networks and the U.S. supply chain from equipment and services that pose a risk to national security.  Changes between the final version and the draft version, on which we previously reported, include questions on whether there are additional compliance and/or enforcement measures the FCC should adopt and whether an applicant for equipment authorization should have an ongoing duty to monitor the FCC’s list of prohibited equipment and services.  Comments and reply comments are due 30 days and 60 days, respectively, after Federal Register publication.  A News Release issued along with the item notes that the FCC’s inquiry is focused on “providing further protections to the nation’s communications equipment and supply chains and keeping untrusted vendors and equipment out of U.S. networks.”

In the Courts

  • City of Portland v. U.S.
    • On June 28, 2021, the Supreme Court denied the Petition for Certiorari filed by local governments that appealed the FCC’s 2018 “Small Cell Order” and “Moratorium Order.”  The local governments asked the Supreme Court to overturn the Ninth Circuit’s decision in City of Portland v. U.S., 969 F.3d 1020 (9th Cir. 2020), which, as we previously explained, largely affirmed the FCC’s orders.  With this cert denial, the local governments’ challenge to these FCC orders is exhausted.

Legislative Efforts

  • The House introduces a bill that would close the loophole that currently allows carriers to use private funds to purchase and use equipment that pose a national security risk.
    • On June 15, 2021, Representatives Scalise and Eshoo and 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.  The FCC’s rules currently apply only to equipment purchased with federal funds (see also above).  FCC Commissioner Carr applauded the action, stating that the bipartisan bill “would close a glaring loophole that Huawei and other entities are exploiting today to place their insecure gear into our networks.”  The bill is currently in subcommittee, and the companion bill was introduced in the Senate in May 2021.
  • The House introduces a bill that would require NTIA to discuss the benefits of Open RAN with small providers.
    • On June 22, 2021, Representatives Allred, O’Halleran, Hudson, and Guthrie introduced the Open RAN Outreach Act, which would require NTIA to conduct outreach and provide technical assistance to small communications network providers to raise awareness about the benefits of Open RAN networks and other open network architectures.  The bill is currently in subcommittee.
  • The House introduces a bill that would require the FCC to begin planning for 6G.
    • On June 22, 2021, Representatives Doyle, Johnson, and McBath introduced the Future Uses of Technology Upholding Reliable and Enhanced (FUTURE) Networks Act.  If enacted, the bill would direct the FCC to establish a 6G Task Force.  The Task Force would be required to publish a report on the status of 6G standards setting, the supply chain and cybersecurity limitations of 6G, and how to best work with Federal, State, local, and Tribal governments to leverage 6G, including with respect to siting and deployment.  The bill is currently in subcommittee.
  • The House holds a hearing on ensuring that the U.S. supply chain meets the needs of the wireless network future.
    • On June 30, 2021, the Communications and Technology Subcommittee of the House’s Energy and Commerce Committee held a hearing entitled “A Safe Wireless Future:  Securing our Networks and Supply Chains.”  Each of the bills discussed above – the Secure Equipment Act of 2021, the Open RAN Outreach Act, and the FUTURE Networks Act – were discussed during the hearing.  Witnesses at the hearing included representatives from equipment manufacturers, a consulting agency, and a national security think tank.
  • On June 29, 2021, the Florida Governor signed a bill, SB 1944, which gives the Florida Public Service Commission (“PSC”) authority to regulate attachments to certain utility poles.  The new statute was intended to give the Florida PSC authority to “reverse preempt” regulation of pole attachment rates, terms, and conditions under 47 U.S.C. § 224(c), which allows states to take over regulation of pole attachments from the FCC if certain requirements are satisfied.  At a minimum, the PSC will need to adopt regulations governing pole attachment rates, terms, and conditions before seeking to certify to the FCC that it has satisfied the requirements to exercise reverse preemption.
  • On June 30, 2021, Pennsylvania joined the majority of states in enacting legislation designed to streamline the deployment of small wireless facilities in the public rights of way when Governor Tom Wolf signed the bill passed through the Pennsylvania legislature on June 25, 2021.  Like other small cell bills, this new law requires consistent and predictable local treatment of wireless deployments in the rights of way.

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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.