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What’s New in 5G - November 2021

The next-generation of wireless technologies – known as 5G – is expected to revolutionize business and consumer connectivity, offering network speeds that are up to 100 times faster than 4G LTE, reducing latency to nearly zero, and allowing networks to handle 100 times the number of connected devices, 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 supports Tribal access to mid-band spectrum in the 2.5 GHz band.
    • On October 14, 2021, the FCC’s Wireless Telecommunications Bureau (“WTB”) released an Order granting a waiver request submitted by the Nebraska Indian Community College (“NICC”) regarding the definition of eligible Tribal lands for purposes of the 2.5 GHz Rural Tribal Priority Window.  Grant of the waiver will allow NICC to provide service to portions of Cuming and Burt counties in Nebraska that are adjacent to the Omaha Reservation and allow it to cover the entire Bancroft-Rosalie School District.
    • In addition, on October 29, 2021, the FCC issued a News Release announcing that the WTB granted 20 additional 2.5 GHz spectrum licenses to serve Alaskan Native communities.  It notes that 292 Rural Tribal Priority Window applications have been granted, including 99 applications in Alaska.
       
  • Bidding in the auction of mid-band spectrum in the 3.45 GHz band continues.
    • The FCC’s auction of mid-band spectrum in the 3.45 GHz band began on October 5, 2021.  As of November 3, 2021, the auction has raised more than $21.5 billion in gross proceeds, satisfying the FCC’s reserve price and making it the third largest spectrum auction in terms of gross proceeds. 
       
  • The FCC continues to transition mid-band spectrum in the C-band for commercial wireless services.
    • On October 8, 2021, the FCC’s International Bureau released a Public Notice to amend the attachment to its Public Notice released on September 15, 2021, which included an updated list of incumbent C-band earth stations transitioning from the band since the list was last released on June 22, 2021.  The revised attachment, which includes a revised Changelog against the June 22 list and a Changelog against the September 15 list, was revised to correct data-entry errors – no substantive changes were made, and no new entities have been added.
    • In addition, in response to changes to certain incumbent satellite operators’ Phase I clearing certifications, the WTB released several Public Notices seeking comment on the same.  Satellite operators in the C-band are required to certify that they have cleared the lower 120 megahertz of the C-band in the top 46 Partial Economic Areas by December 5, 2021, and all five incumbent satellite operators filed their certifications in October. 
      • Intelsat subsequently filed an amendment to its certification, and Telesat filed two errata.  On October 19, 2021, the WTB released a Public Notice announcing the challenge deadlines for Intelsat’s amendment and Telesat’s first erratum, with challenges and replies due October 29 and November 5, respectively.  On October 21, 2021, the WTB released a Public Notice on the second erratum to Telesat’s C-band Phase I certification, announcing that challenges are due November 1, and replies are due November 8.
      • SES also filed an amendment to its C-band certification.  And, on October 27, 2021, the WTB released a Public Notice on SES’s amendment, announcing that challenges are due November 8 and replies are due November 16.
    • On October 27, 2021, the WTB released an Order validating the Phase I Certification filed by Eutelsat, making it now entitled to a Phase I Accelerated Relocation Payment (“ARP”) of $124,817,000.  New terrestrial C-band licensees will be required to pay their portion of the relevant Phase I ARP to the Clearinghouse within 60 days of receiving notice from the Clearinghouse, and the Clearinghouse must then disburse the ARP to Eutelsat within seven days of receiving the payment from the licensees. 
       
  • The FCC stabilizes the 4.9 GHz band as it considers whether and how to make it available for non-public safety uses, including 5G services.
    • On October 21, 2021, the FCC’s WTB and Public Safety and Homeland Security Bureau (“PSHSB”) released a Public Notice announced a temporary freeze on the acceptance and processing of certain applications for use of spectrum in the 4940-4990 MHz (“4.9 GHz”) band.  The purpose of the freeze is to maintain a stable spectral environment in the 4.9 GHz band while the Commission considers changes to the rules governing in the band, including, as we previously reported, ways to encourage public safety use of 5G services and technologies and opportunities for commercial entities to use the spectrum. 
    • In addition, the Order on Reconsideration and Eighth Further Notice seeking comment on future use of the 4.9 GHz band was published in the Federal Register on October 29, 2021, making comments and replies due November 29 and December 28, respectively.  The WTB and PSHSB subsequently released a Public Notice announcing those comment deadlines.

High-Band Spectrum

  • The FCC seeks to refresh the record on potential use of certain high-band spectrum for mobile broadband and wireless services.
    • On October 8, 2021, the FCC’s WTB released a Public Notice seeking to refresh the record in an open proceeding on making certain high-band, or millimeter wave, spectrum in the 70/80/90 GHz bands available for commercial wireless services, including broadband Internet access to consumers and communities that may otherwise lack robust, consistent connectivity.  It also seeks additional information on potential use of these bands for broadband Internet access on airplanes and aboard ships.  The deadlines for submitting comments and reply comments in response to the Public Notice are December 2, 2021, and January 3, 2022, respectively. 

Other Spectrum

  • FCC Chairwoman sets forth five goals to support 5G and contemplates 6G going forward.
    • On October 12, 2021, FCC Acting Chairwoman Jessica Rosenworcel made remarks at the 10th Americas Spectrum Management Conference.  She expressed the need to “reinvigorate[e] the momentum toward 5G,” including by (i) freeing up more spectrum, especially mid-band spectrum for 5G; (ii) expanding the reach of fiber facilities; (iii) diversifying equipment for 5G networks; (iv) building security and resiliency in our supply chains; and (v) working with allies and multinational institutions on setting technology standards for the future.  She also expressed the desire to pave the way for 6G and beyond.
       
  • NTIA provides an analysis on the comments it received on its 5G Challenge Notice of Inquiry.
    • On October 22, 2021, NTIA released a blog post announcing that it analyzed the 51 responses it received on the 5G Challenge Notice of Inquiry it released earlier this year, which requested information on how to use Prize Challenges to accelerate the development of the open 5G ecosystem and support Department of Defense (“DoD”) missions.  The blog post notes that the analysis, available here, will “inform future collaborations between DoD and NTIA, including the potential of an initial 5G Challenge in 2022.”

5G Networks and Infrastructure

  • The FCC and NTIA take several actions as they move closer to securing the Nation’s 5G networks.
    • On October 12, 2021, NTIA released a blog post announcing the launch of a Communications Supply Chain Risk Information Partnership (“C-SCRIP”) information-sharing program.  It will provide updates on events, announcements, and funding opportunities related to supply chain security.  And the first of these updates will include information on the FCC’s reimbursement program established pursuant to the Secure and Trusted Communications Networks Act of 2019 (“Reimbursement Program”). 
    • On October 6, 2021, the FCC’s Wireline Competition Bureau (“WCB”) released a Public Notice announcing that certain rules requiring Paperwork Reduction Act review, including the FCC Form 5640 to participate in the Reimbursement Program and recordkeeping requirements, have been approved by the Office of Management and Budget. 
    • On October 19, 2021, the FCC issued a News Release announcing that FCC Commissioner Carr has called for commencing the process of adding DJI – a Shenzhen-based drone company that accounts for more than 50 percent of the U.S. drone market – to the FCC’s Covered List, which would mean that entities could not use federal Universal Service Fund dollars to purchase equipment from DJI.
    • On October 20, 2021, the WCB released a Public Notice announcing the availability of a user guide for the FCC Form 5640 to participate in the Reimbursement Program.  The user guide, available here, provides step-by-step instructions for navigating the online filing portal and completing the application.  The WCB separately made available on the FCC’s Supply Chain Webpage, the Excel batch upload templates to assist applicants with completing the location and equipment portions of the FCC Form 5640.  Finally, the WCB published an updated version of the Frequently Asked Questions (FAQs), available here, to reflect additional questions received.
    • In response to an Application for Review submitted by Cincinnati Bell, Inc. regarding whether certain customer premises equipment (“CPE”) – specifically premises gateway devices – produced or provided by Huawei and ZTE are eligible for the Reimbursement Program, the FCC released an Order on October 28, 2021, clarifying that “[c]osts associated with the removal, replacement, and disposal of covered Huawei and ZTE CPE, where essential to the provision of advanced communications service,” may be eligible for reimbursement.  Such Huawei and ZTE CPE could include “network gateway devices with wireless (Wi-Fi) capabilities to the extent such equipment is owned, rented, leased, or otherwise obtained by the provider of advanced communications service on or before June 30, 2020.”  
    • On October 29, 2021, the FCC issued a News Release announcing the opening of the application filing window for the Reimbursement Program.  The application filing portal is available here, and the application filing window will close on January 14, 2022 at 11:59 PM ET. 

Legislative Efforts

  • The House Subcommittee on Communications and Technology holds a markup section on a key spectrum bill.
    • On November 3, 2021, the House Subcommittee on Communications and Technology of the Energy and Commerce Committee held a markup session of the Spectrum Coordination Act.  If enacted, the bill would require NTIA and the FCC to update the Memorandum of Understanding on Spectrum Coordination no later than December 31, 2022.
       
  • Both the Senate and House pass 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 October 28, 2021, the Senate passed the Secure Equipment Act of 2021, which, if enacted, 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 poses an unacceptable risk to national security, even if the equipment was purchased by private funds.  The House passed the bill a few days earlier on October 20, 2021.  
      • FCC Commissioner Simington applauded the Senate’s passage of the bill, commenting that “[o]nce signed, this important legislation will give the FCC crucial authority to protect American networks from untrustworthy equipment that can serve as footholds for China and other foreign powers to infiltrate U.S. telecommunications networks and threaten our national security” and urging the FCC to “continue to engage with industry and other parts of government to identify and eliminate weaknesses that can be exploited by our adversaries.” 
      • Similarly, after the House passed the bill, FCC Commissioner Carr stated that the “bipartisan Secure Equipment Act would close a glaring loophole that Huawei and others are exploiting today to place their insecure gear into our networks.”  
         
  • The Senate introduces a bill that would establish a council to advise Congress on developing a national strategy for 6G. 
    • Senator Cortez Masto introduced the Next Generation Telecommunications Act on October 20, 2021.  The bill would establish a Next Generation Telecommunications Council (“Council”) comprised of leaders from the Commerce Department, NIST, the FCC, the National Science Foundation, and members of Congress, among others, and the Council would help establish a national 6G strategy.  In particular, the Council would be required to develop and submit to Congress recommendations for how the Federal government can support the development and adoption of 6G, 6G standards development, and international cooperation with respect to 6G.  In addition, the Council would be required to consider access to spectrum resources to support 6G, 6G supply chain resiliency, the Federal government’s role as the regulator of spectrum, and 6G workforce needs.

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Authors

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.
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.