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What’s New in 5G - April 2022

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

  • The FCC announces that the next auction of mid-band spectrum for 5G wireless services will begin on July 29, 2022.
    • On March 21, 2022, the FCC released a Public Notice adopting procedures for the auction of spectrum in the 2496-2690 MHz (“2.5 GHz”) band, which will offer the single largest contiguous portion of available mid-band spectrum below 3 GHz to support 5G services, particularly in rural and unserved areas.  Bidding is scheduled to commence on July 29, 2022 and will be conducted using the FCC’s standard clock auction format, with a few modifications. 
    • FCC Chairwoman Rosenworcel commented that “[t]he 2.5 GHz band auction can help deliver on the promise of 5G services” and “provides an opportunity to fill in some of the critical 5G gaps in rural America.”
    • In addition, the FCC’s Wireless Telecommunications Bureau (“Bureau”) and the Office of Economics and Analytics (“OEA”) announced the launch of a mapping tool that can be used to help assess whether and to what extent there is unassigned 2.5 GHz spectrum available in any U.S. county.  The tool is available on the FCC’s auctions website here.
  • The FCC establishes procedures for disputes related to clearing certain mid-band spectrum for 5G and continues to take action to identify incumbents.
    • On March 21, 2022, the Bureau released a Public Notice establishing procedures for appealing decisions made by the 3.7-4.2 GHz (“C-band”) Relocation Payment Clearinghouse (“Clearinghouse”).  The Clearinghouse is tasked with making decisions regarding lump sum payments to, and reimbursement requests of, incumbent earth station operators that will transition from the band so that it can be made available for 5G services.  It is also expected to make decisions regarding the division of obligations among new terrestrial wireless service licensees. Among other things, the Public Notice clarifies the process and timelines for filing appeals of Clearinghouse decisions to the Bureau.
    • On March 14, 2022, the FCC’s International Bureau issued a Public Notice announcing that it has released an updated list of incumbent earth stations that are entitled to relocation costs for clearing the C-band.  A copy of the updated list is available here.  This updated list reflects changes since the previous list was released on October 8, 2021.  The International Bureau subsequently issued a Public Notice on April 4, 2022 that further amends the updated incumbent earth station list.  The attachment, which includes a Changelog against the October 8, 2021 incumbent earth station list, as well as a Changelog against the March 14, 2022 incumbent list, was revised to correct data-entry errors – no substantive changes were made, and no new entities have been added.

Other Agency Actions

  • Federal agencies agree to work closely together on technical and spectrum issues.
    • On March 18, 2022, the National Telecommunications and Information Administration (“NTIA”) and the FCC issued a News Release stating that a representative of each organization will participate in the other’s spectrum management activities.  This announcement is part of the agencies’ earlier-announced Spectrum Coordination Initiative.  In the News Release, FCC Chairwoman Rosenworcel noted that “[t]o succeed as spectrum partners, the FCC and NTIA must hear from and listen to each other in both formal and informal ways.”
    • On March 30, 2022, the FCC and NTIA announced that they held their first monthly coordination meeting to discuss spectrum policy efforts as part of the Spectrum Coordination Initiative.  According to the announcement, FCC Chairwoman Rosenworcel remarked:  “Our agencies have a long history of working together to ensure that spectrum policy decisions foster economic growth, ensure our national and homeland security, maintain U.S. global leadership, and advance other vital U.S. needs.  That will only continue and grow as we build this new agreement.”
  • The FCC releases its 2023 budget estimates for upcoming expenditures to, among other things, continue its efforts to make more spectrum available for 5G.
    • On March 28, 2022, the FCC released its 2023 Budget Estimates to Congress, as well as its Budget-In-Brief.  The FCC requests $132 million for FY 2023 to implement its spectrum auctions to support 5G services, which is a decrease of $2.26 million (or 1.7 percent) from the previous year.  It stated that the requested level of funding will enable it to, among other things, take steps toward the potential auction of licenses in the 3.1-3.45 GHz band, promote the use of the previously auctioned 3.5 GHz band, and continue to transition the 3.45 GHz band and C-band for commercial use.
  • The FCC releases its annual performance report for 2021 and a strategic plan for 2022-2026.
    • On March 29, 2022, the FCC released its Annual Performance Report for FY 2021, reflecting on the agency’s strategic and performance goals included in its FY 2021 budget proposal to Congress.  Among other things, the report highlights the actions taken by the FCC to make additional spectrum available for 5G deployment, including mid-band spectrum in the 4.9 GHz, 3.45-3.55 GHz, 3.5 GHz, C-band, and 2.5 GHz bands.  It also reports on the FCC’s activities related to standards-based 5G network equipment and services.
    • On that same day, the FCC released its Strategic Plan for FY 2022-2026, which explains that the FCC will continue to “take action to promote investment and advance the development and deployment of new communications technologies, such as 5G, that will allow the nation to remain a global leader in an increasingly competitive, international marketplace.”  The FCC notes as its goals that it will evaluate and report on the competitive environment for communications services, ensure effective policies are in place to promote and protect competition and remove barriers to investment, pursue spectrum policies to achieve the effective and efficient use of spectrum, allow new services and technologies to come to market by expediting processes, and continue post-incentive auction repacking, displacement, and reimbursement efforts for broadcasters.

5G Networks and Infrastructure

  • The FCC adds three companies to its list of covered equipment and services that pose a national security risk.
    • On March 25, 2022, the FCC’s Public Safety and Homeland Security Bureau released a Public Notice announcing that it has updated the list of covered equipment and services that have been deemed to be a national security risk.  In particular, the list, available here, has been updated to include certain equipment and services by AO Kaspersky Lab, China Mobile International USA Inc., and China Telecom (Americas) Corp., including their subsidiaries and affiliates. 
    • FCC Chairwoman Rosenworcel remarked that “[t]oday’s action is the latest in the FCC’s ongoing efforts, as part of the greater whole-of-government approach, to strengthen America’s communications networks against national security threats.”  
    • FCC Commissioner Carr commented that “[t]he FCC plays a critical role in securing our nation’s communications networks, and keeping our Covered List up to date is an important tool we have at our disposal to do just that.”
  • The FCC adopts a Second Further Notice of Proposed Rulemaking on pole attachments.
    • As we reported last month, at its March 16, 2022 meeting, the FCC adopted the Second Further Notice of Proposed Rulemaking (“FNPRM”) raising questions regarding pole attachments. 
    • The FNPRM largely follows the draft released in February.  The Commission’s inquiries focus on ways to facilitate the resolution of pole replacement and pole attachment rate disputes, including which party or parties benefit and which party or parties should pay for pole replacements, including when the replacement is not necessitated solely by a new attachment request and where early pole retirement may benefit the pole owner.
    • The Commission did, however, add a few new questions of note, including:
      • The Commission opens the scope of the FNPRM beyond the cost of pole replacements, asking whether there are other recurring issues with the pole attachment process that hinder the ability of broadband providers to deploy new facilities or other infrastructure-related barriers that broadband providers are facing in their efforts to quickly deploy broadband. 
      • The Commission also adds a question about constraints on a utility’s ability to deny an attachment based on lack of capacity, such as the nondiscrimination requirement in Section 224(f)(2) of the Act.  The Commission asks, for instance, if a utility itself provides broadband, would it be discriminatory to deny attachment to another broadband provider based on lack of capacity.
        • The scope of the “lack of capacity” language in Section 224 has long been a source of dispute between pole owners and attaching parties.
    • Responding to comments by pole owners, initial comments are due 60 days after the item is published in the Federal Register.  Reply comments are due 30 days thereafter.

Legislative Efforts

  • The Senate passes a bill that would promote U.S. competitiveness in the wireless sector. 
    • On March 28, 2022, the Senate amended and passed the America COMPETES Act of 2022.  The bill, if enacted, would, among other things, fund the Public Wireless Supply Chain Innovation Fund, which is intended to make grants through NTIA to promote 5G competitiveness; fund the Telecommunications Workforce Training Grant Program, which would fund grants to help prepare students for employment related to 5G deployment; and promote open network architecture through grants to private sector entities that participate in standards-setting bodies.
  • The House passes a key spectrum bill.
    • On April 5, 2022, the House passed 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.
  • The House Communications and Technology Subcommittee holds a hearing to discuss FCC oversight.
    • On March 31, 2022, the Communications and Technology Subcommittee of the House Energy and Commerce Committee held a hearing entitled “Connecting America:  Oversight of the FCC.”  The purpose of the hearing was to discuss key FCC issues and proceedings, such as broadband mapping, secure networks, and the spectrum pipeline, the FCC’s authority to conduct spectrum auctions, and network resiliency.  Each of the four FCC Commissioners provided written statements and testified during the hearing.  FCC Chairwoman Rosenworcel, in particular, answered questions from subcommittee members on the viability of the 12 GHz band for 5G, FCC spectrum coordination with NTIA, and the impact of Congress failing to extend the FCC’s auction authority.

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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.
Christen B'anca Glenn is a Mintz attorney who advises communications and technology clients on regulatory and compliance matters before the FCC.