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What’s New in Wireless - May 2023

The wireless industry has revolutionized the way we connect, from facilitating teleworking, distance learning, and telemedicine to allowing the American public to interact virtually in almost all other aspects of their daily lives.  Leading policymakers – federal regulators and legislators – are making it a top priority to ensure that the wireless industry has the tools and resources it needs to keep pace with this evolving landscape.  This blog provides monthly updates on actions by federal regulatory bodies responsible for communications policy and Congressional efforts to support wireless connectivity.  And this month, we highlight the opportunity for interested parties to obtain up to $140.5 million under the Public Wireless Supply Chain Innovation Fund for research activities related to wireless network technologies.

Regulatory Actions and Initiatives

Wireless Equipment, Networks, and Infrastructure

The First Tranche of Funding to Assess 5G Radio Access Networks is Released.  The National Telecommunications and Information Administration (“NTIA”) released its first Notice of Funding Opportunity (“NOFO”) for funding under the Public Wireless Supply Chain Innovation Fund (“Innovation Fund”), which is a $1.5 billion fund established by Congress to facilitate the adoption of open and interoperable wireless networks.  This first round of funding will make available up to $140.5 million in grants for two specific research focus areas:  (1) $10 million to $50 million in individual awards to expand industry-accepted testing and evaluation “to effectively facilitate and assess the interoperability, performance, and/or security of open and interoperable, standards-based 5G radio access networks”; and (2) $250,000 to $2 million in individual awards to develop “new and/or materially improved testing methodologies to test, evaluate, and validate the interoperability, performance, and/or security of networks, including their component parts,” to address needs not currently met by industry-accepted tests and best practices.  Applications are due by June 2, and initial awards will be issued by August 8.  NTIA will hold an open public information session to discuss the technical aspects of the NOFO and best practices for applying for funding on May 4, from 9:00 am to 12:00 pm EDT.  NTIA has also released these FAQs to clarify and provide guidance on the NOFO, and it notes that it may add other FAQs in the future. 

The FCC Adopts its Policy Statement on Receiver Performance.  On April 20, 2023, the FCC adopted a Policy Statement articulating high-level principles intended to guide future FCC decision-making and stakeholder action related to the operation and use of wireless transmitters and receivers in spectrally proximate (i.e., neighboring) services.  There were no substantive changes between the draft Policy Statement, on which we previously reported, and the final version that was adopted.  According to the FCC’s News Release, the Policy Statement “will help inform potential future Commission considerations and actions concerning harmful interference issues, the responsibilities of both transmitters and receivers to mitigate interference, and the further regulatory steps to ensure coexistence among services in increasingly congested spectrum bands.”

FCC Commissioners Attend 5G Workforce Training Event.  According to this FCC News Release, FCC Commissioners Starks and Carr visited Petersburg, Virginia, for a broadband and 5G workforce training event at Virginia State University, a public historically black college (“HBCU”).  Commissioner Starks commented that “a workforce that will connect every community in America should represent every community in America” and that “HBCUs like Virginia State University are a key part of the solution.”  Commissioner Carr added that “America’s tower techs, lineman, and other 5G workers are the backbone of this country’s broadband builds” and “[t]heir work is vital to getting more Americans online and extending our 5G leadership.”

Wireless Spectrum

The FCC Presses Congress to Restore Spectrum Auction Authority.  As we previously reported, Congress, for the first time in decades, has let the FCC’s authority to conduct spectrum auctions expire.  All four FCC Commissioners sent a letter to House and Senate Commerce Committee leaders urging Congress to act promptly to restore the Commission’s authority.  The Commissioners noted that auctions have fueled competition, provided consumers with a vast array of wireless technologies and services, and ensured that the Nation’s scarce spectrum resources are put to their highest and best use.  The Commissioners asked Congress to restore the Commission’s auction authority in advance of the upcoming World Radiocommunication Conference, in particular, to send a strong signal of continued U.S. commitment to lead in coming generations of wireless technologies.

The FCC Releases a Draft Item that Would Seek to Make Available Additional Mid-Band Spectrum for Mobile Broadband.  On April 27, 2023, the FCC released a draft Report and Order and Further Notice of Proposed Rulemaking and Notice of Proposed Rulemaking and Order that would, if adopted at the FCC’s May 18, 2023 open meeting, continue developing a pipeline of spectrum in the 12 GHz band for flexible use, including commercial wireless services.  Specifically, while the draft Report and Order and Further Notice of Proposed Rulemaking would decline to authorize two-way terrestrial 5G mobile use in the 12.2-12.7 GHz band, it would seek comment on other potential expanded use of the band, such as for point-to-point or point-to-multipoint use.  In addition, the draft Notice of Proposed Rulemaking and Order would propose to repurpose the 12.7-13.25 GHz band for mobile broadband or other expanded use and would seek comment on whether to grandfather, relocate, or repack incumbents.  It would also direct fixed and mobile Broadcast Auxiliary Service incumbent licensees in the band to certify the accuracy of all information reflected on each license so that the Commission can gather more accurate information about incumbent use in considering whether and how to relocate incumbents and whether spectrum sharing is feasible.  Comments and reply comments would be due 30 days and 45 days, respectively, after publication in the Federal Register.

NTIA Releases a Report Suggesting that Spectrum Sharing in the 3.5 GHz Band is Working to Help Serve Rural Areas.  NTIA released a blog post announcing that its research and engineering lab, the Institute for Telecommunication Sciences (“ITS”), has issued a report demonstrating that the Citizens Broadband Radio Service (“CBRS”) dynamic spectrum sharing framework employed in the 3.5 GHz band “is working” and is playing an important role in connecting rural America.  A copy of the report is available here, and the press release accompanying the report is available here.  Among, other things, the report notes that, between April 1, 2021 and January 1, 2023, the number of CBRS devices nationwide grew by 121 percent, indicating that access to the spectrum is growing, and that more than 70 percent of all active devices are deployed in rural census blocks, showing that the band is playing a significant role in expanding rural wireless connectivity.  NTIA has requested feedback on the report, including observations and conclusions, how future reports may be improved, and on ways to improve the CBRS spectrum sharing framework.  Comments are due by May 31, 2023.  

Relief is Granted to Two Holders of AWS-3 Spectrum Licenses.  The FCC’s Wireless Telecommunications Bureau (“Bureau”) released an Order granting, in part, requests from Triangle Communication System, Inc. (“Triangle”) and Northern Valley Communications, LLC (“NVC”) (collectively, the “Companies”) for a waiver of the accelerated final buildout deadline penalty for failing to meet the interim construction deadlines for their AWS-3 licenses.  In their waiver requests, the Companies, both recipients of Universal Service Fund (“USF”) funds, explained that they planned to construct their AWS-3 networks using Huawei equipment.  However, they had to suspend construction following the adoption of the rules prohibiting USF funds from being used to purchase equipment manufactured by companies, like Huawei, that pose a national security threat to U.S. communications networks.  The Bureau found that the new rules fundamentally altered the Companies’ ability to build their networks.  Accordingly, the Companies’ license terms and final buildout deadlines will remain April 8, 2027 (Triangle) and November 19, 2027 (NVC) and will not be accelerated.

Wireless Services

The FCC Seeks Public Input on Wireless Emergency Alerts.  On April 21, 2023, the FCC released a Further Notice of Proposed Rulemaking (“Further Notice”) proposing to require commercial mobile service (“CMS”) providers that have elected to participate in Wireless Emergency Alerts (“WEA”) to, among other things, take measures to:

  • Make WEA more accessible, including to people who primarily speak a language other than English or Spanish and people with disabilities who cannot access messages displayed in conventional formats;
  • Integrate WEA more seamlessly into people’s lives through increased flexibility in whether the attention signal and/or vibration is triggered;
  • Satisfy performance measures for WEA; and
  • Provide alerting stakeholders with greater transparency regarding where and on what devices they offer WEA, as well as information about WEA performance.

Comments and reply comments are due 30 days and 60 days, respectively, after the Further Notice is published in the Federal Register, which has not yet occurred.

In the Courts

The Ninth Circuit Court of Appeals has set oral argument for July 11, 2023 in the appeal of the FCC’s 2020 5G Upgrade Order, in League of California Cities v. FCC.

Legislative Efforts

The House Passes a Bill that Would Allow Providers to Apply to Access Spectrum to Fill in Wireless Coverage Gaps.  On April 26, 2023, the House passed the Advanced, Local Emergency Response Telecommunications Parity Act.  If enacted, the bill would, among other things, require the FCC, within 18 months of enactment, to establish a process for providers to apply for approval to access spectrum in order to provide emergency services in unserved areas.  The bill also would direct the FCC to report annually to Congress on the provision of emergency connectivity service to unserved areas.  The bill is currently in the Senate.

The House Passes a Bill that Would Provide Statutory Authority for NTIA’s Test Center.  On April 25, 2023, the House passed the ITS Codification Act, which, if enacted, would amend the NTIA Organization Act to provide statutory authority for the ITS.  The bill is currently in the Senate.

The Senate Introduces a Bill to Fully Fund the Rip-and-Replace Program.  On April 20, 2023, Senators Fischer and Hickenlooper introduced the Defend Our Networks Act.  If enacted, the bill would use about three percent of unspent and unobligated emergency COVID-relief funds to address the $3.08 billion shortfall in funding for the Secure and Trusted Communications Networks Reimbursement Program (also known as the “Rip-and-Replace Program”).  FCC Chairwoman Rosenworcel, Commissioner Carr, and Commissioner Starks each applauded the bill’s introduction.  Commissioner Starks explained that fully funding the Rip-and-Replace Program is necessary “[f]or our national security and the success of our rural communities.”  Similarly, Commissioner Carr added that this “commonsense bill . . . would strengthen communications networks in rural communities and bolster our national security.”  Chairwoman Rosenworcel noted her support for the bill, pointing out that the “responsibility [to ensure the safety of our Nation’s communications networks] never ends because the threats to network security are always evolving.”

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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.

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