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What's New in 5G - November 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

Spectrum

  • The FCC initially approves applications for licenses from its most recent auction of mid-band spectrum in the 2.5 GHz band.
    • On October 26, 2022, the FCC’s Wireless Telecommunications Bureau (“WTB”) released a Public Notice announcing that 52 applications for licenses in the 2.5 GHz band have been found, upon initial review, to be acceptable for filing.  A list of the applications, sorted by applicant name, is available here, and the same list, sorted by market, is available here.  Petitions to deny the applications are due November 7, 2022, oppositions to a petition to deny are due November 14, 2022, and replies to oppositions are due November 21, 2022.
  • The FCC grants additional licenses for mid-band spectrum in the 3.5 GHz band and provides notice to a licensee of its interim default payment obligation.
    • On October 12, 2022, the WTB released a Public Notice announcing the grant of an additional 41 Priority Access Licenses (“PALs”) that will permit commercial wireless operations in the 3550-3650 MHz portion of the 3550-3700 MHz band.  A list of the licenses granted, sorted by licensee (which is only Wisenet, LLC), is available here.  And a list of the same licenses granted, sorted by market, is available here.  
    • On October 31, 2022, the FCC's Office of Economics and Analytics (“OEA”) released a letter providing notice to Cable One, Inc. (“Cable One”) of its interim default payment obligation with respect to its 3.5 GHz auction defaults.  Cable One was a winning bidder of 547 PALs, including four PALs in three Kansas license areas.  After Cable One submitted its long-form application, it entered into a purchase agreement with AMG Technology Group LLC (“AMG”), which was also a winning bidder of six PALs in the same three Kansas license areas where Cable One was a winning bidder. The purchase agreement granted Cable One a 17.6% ownership interest in AMG.  To avoid violating the spectrum aggregation limit from AMG’s attributable interest, Cable One submitted an amended long-form application, removing the four PALs in the three Kansas license areas.  Because withdrawal of a long-form application with respect to a license for which the applicant was the winning bidder constitutes a default under the Commission’s rules, Cable One is subject to a default payment.  And because OEA cannot determine Cable One’s total default payment – which will depend on the price of the four PALs when they are re-auctioned – OEA assessed an interim default payment in the amount of $3,239.40.
  • The FCC initiates a new inquiry to examine potential use of spectrum in the 12.7-13.25 GHz band for commercial wireless services.
    • On October 28, 2022, the FCC released a Notice of Inquiry that seeks information on the current use of the 12.7-13.25 GHz band, how more efficient and intensive use of the band could be encouraged, and whether the band is suitable for mobile broadband or other expanded use, including 5G wireless services.  Comments and reply comments on the Notice of Inquiry are due November 28, 2022 and December 27, 2022, respectively.  
    • According to the FCC’s press release, “[t]he FCC expects that this inquiry is the first step in providing for more intensive use of the 12.7 GHz band, unlocking a significant expanse of valuable mid-band frequencies that may play a key role in delivering on the promise of next-generation wireless services, including 5G, 6G, and beyond.”  It adds that “[t]his new proceeding is the latest in a series of FCC initiatives to ensure that mid-band spectrum is available for current and future consumer and business wireless needs.”
    • Relatedly, the FCC’s Office of Engineering and Technology and WTB issued a Public Notice establishing a docket number for this proceeding and subjecting it to “permit but disclose” ex parte rules, which means parties may make presentations before the FCC related to this proceeding, but they must disclose the contents of those presentations to the public. 
    • In addition, a Public Notice was released on September 19, 2022, freezing, for 180 days, applications for use of the 12.7-13.25 GHz band by space, earth, broadcast auxiliary, cable relay, and fixed microwave stations in order to create a stable spectrum landscape while the FCC evaluates the band.  However, now that the Notice of Inquiry has been adopted, the freeze will be extended indefinitely.

Other Agency Actions

  • The National Telecommunications and Information Administration (“NTIA”) announces winners of its 5G Challenge.
    • On October 6, 2022, NTIA announced three winners from Stage Three of its 5G Challenge:  Capgemini Engineering, Radisys Corporation, and Mavenir Systems, Inc.  Each received a $250,000 “Network Integration” prize for successfully developing a fully integrated multivendor end-to-end 5G network.  In addition, Radisys Corporation was awarded the “Best Software Bill of Materials” (“SBOM”) prize and will receive an additional $200,000 because of its “comprehensive, informative, and high quality SBOM, which went above and beyond to report vulnerability and risk.”  The rules, location, and details of the 5G Challenge Final Event will be released in early 2023.
  • NTIA releases a report on data used to study the impact of 5G services on aircraft.
    • NTIA released a report on data that was collected to help determine whether 5G transmitters operating in the 3700-3980 MHz band (known as the C-band) will cause harmful interference to airborne radar (or radio) altimeter receivers operating in the 4200-4400 MHz band.  This report is one of three that will be produced regarding the potential impact of 5G wireless services on radio altimeters and “will point the way toward practical and effective technical solutions of any such potential problems.”
    • In addition, on October 25, 2022, NTIA released a blog post highlighting the importance of the report for policymaking purposes and the role NTIA can play in interagency spectrum coordination as it develops a National Spectrum Strategy.  The blog post also notes that the measurement data are available on NTIA’s GitHub link, so that researchers inside and outside of the federal government can conduct further study.
  • NTIA releases its annual report on the transition of federal agencies from spectrum to be made available for commercial wireless services.
    • On October 19, 2022, NTIA announced the release of its annual report on the progress federal agencies have made in transitioning from spectrum that has been made available for commercial wireless use.  The report, which is required by Congress under the Commercial Spectrum Enhancement Act, provides a status update as of the end of 2021 and covers the following spectrum bands:  AWS-1, AWS-3, 3.5 GHz Citizens Broadband Radio Service, and 3.45 GHz bands.  It is accompanied by detailed charts showing the federal entities that use (or used) spectrum in the affected bands and the status of efforts to transition operations from the bands, including timelines and costs for relocating their operations.

Legislative Efforts

  • The House introduces a bill that would promote transparency regarding entities that hold FCC authorizations and licenses.
    • On October 25, 2022, Representatives Stefanik and Gallagher introduced the Foreign Adversary Communications Transparency (FACT) Act, which, if enacted, would direct the FCC to publish on its website a list of entities that hold an FCC license, authorization, or other grant of authority and are 10 percent or more owned by the People’s Republic of China, Russia, Iran, or North Korea.  FCC Commissioner Carr praised the bill, noting that the list “would aid the FCC in carrying out its mission of advancing America’s national security interest.”

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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.