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What’s New in Wireless - July 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 recent Congressional hearings related to oversight of the FCC with respect to wireless communications policies as well as the confirmation of three FCC Commissioners.  

Regulatory Actions and Initiatives

FCC Hearings

Senate Commerce Committee Holds Confirmation Hearing on FCC Commissioner Nominations.  On June 22, 2023, the Senate Commerce Committee held a hearing to consider President Biden’s nominations for Anna Gomez to become the fifth FCC Commissioner and for Commissioner Carr’s and Commissioner Starks’ reappointments as FCC Commissioners for additional five-year terms.  The Committee also considered President Biden’s nomination for Fara Damelin to serve as the agency’s Inspector General.  During the hearing, Senator Blackburn asked Ms. Gomez if she would continue leading the U.S. delegation at the World Radiocommunication Conference (“WRC”) later this year, if she is confirmed as a Commissioner.  Ms. Gomez responded that the State Department has considered how U.S. WRC leadership will continue if she becomes a Commissioner.  In response to a question from Senator Cantwell about international efforts for spectrum sharing, Ms. Gomez explained that the U.S. has been the global wireless leader, but that the U.S. will need to continue working toward maintaining that leadership.  Senator Budd asked Commissioner Carr if the Commission has the authority to issue the pending 2.5 GHz licenses given that the Commission’s auction authority has lapsed.  Commissioner Carr pointed out that the Commission’s authority to conduct auctions pursuant to Section 309(j) of the Communications Act has expired, however, the Commission’s authority to issue licenses pursuant to Section 309(a) has not expired.

House Communications and Technology Subcommittee Holds a Hearing on FCC Oversight.  On June 21, 2023, the Subcommittee on Communications and Technology of the House Energy and Commerce Committee held a hearing on oversight of the FCC.  Each of the current FCC Commissioners testified during the hearing.  Chairwoman Rosenworcel noted that the Commission is working to make more spectrum, including spectrum in the 7-16 GHz band, available for 6G and future wireless communications.  Chairwoman Rosenworcel also urged Congress to restore the Commission’s auction authority, noting that the global wireless community will gather for the WRC later this year.  Commissioner Carr explained that promoting U.S. wireless leadership, including through wireless infrastructure, has been one of his top priorities during his tenure as a Commissioner and stated that the Commission “should look to accelerate [its] efforts on the spectrum front.”  Commissioner Carr asked Congress to help the Commission restore spectrum auction authority and noted that the Commission must continue its work on permitting reform.  In his testimony, Commissioner Starks noted that U.S. wireless networks need to grow with respect to “capability, coverage, and the choice they offer consumers” and explained that Congress and the FCC must work together to finalize the rip-and-replace remediation process.  Commissioner Simington similarly explained that renewal of the Commission’s spectrum auction authority is critical for the U.S. to continue leading the world in wireless communications.  During the hearing, several Subcommittee members, including House Commerce Chairs Rodgers and Latta, discussed the Spectrum Auction Reauthorization Act, which was recently favorably reported by the House Commerce Committee and would extend the FCC’s auction authority to September 30, 2026 and fully fund the rip-and-replace program, among other things.  Chair Rodgers noted the House’s efforts to ensure that the bill is passed.

Wireless Spectrum

The FCC Seeks Comment on the NFL’s Request for Waiver in the 3.5 GHz Band.  The FCC’s Wireless Telecommunications Bureau (“WTB”) released a Public Notice on July 5, 2023 seeking comment on the NFL’s request to extend for a two-year period (i.e., through the end of the 2024-2025 season) its conditional waiver of the FCC’s rule requiring Citizens Broadband Radio Service (CBRS) communications to be coordinated through a Spectrum Access System (“SAS”) so that the NFL can continue to operate its coach-to-coach communications systems in the event of a localized internet outage in an NFL stadium.  Like its prior extension request, the NFL contends that an extension of the conditional waiver is needed to address the possibility of simultaneous Internet outages during or immediately prior to the start of a football game.  According to the NFL, grant of the extension request will allow it to continue to assess the technical and regulatory aspects of additional workaround solutions in the event of a simultaneous Internet outage.  Comments and replies are due July 17 and July 24, respectively.

The FCC Extends Relief for a Spectrum Access System in Guam.  On June 12, 2023, the WTB released an Order granting Federated Wireless’s request to extend its conditional emergency waiver of the rules that require Environmental Sensing Capabilities (“ESCs”) in Dynamic Protection Areas (“DPAs”) to detect and protect federal incumbent users in the 3.5 GHz band from harmful interference from commercial wireless operations.  Grant of the initial waiver enabled the Federated Wireless SAS to treat the Guam DPAs as “inactive” for the duration of the waiver authority, relieving its ESC of the detection requirement.  The WTB determined that, given the continued lack of reliable power and backhaul to Federated Wireless’s systems in Guam, the waiver should be extended until the earlier of July 28, 2023, or the restoration of reliable power and backhaul to those systems.

The FCC Approves Three Satellite Operators’ Certifications for Phase II Clearing of the C‑band.  On June 30, 2023, the WTB released three Orders validating the Phase II Certifications filed by Satélites Mexicanos S.A. de C.V. d/b/a Eutelsat Americas (“Eutelsat”), Telesat Spectrum Corporation (“Telesat”), and Embratel TVSAT Telecomunicações S.A. (“Embratel”), paving the way for those satellite operators to receive Accelerated Relocation Payments (“ARPs”) from wireless service providers for clearing the spectrum.  The WTB found that the Phase II Certifications satisfied the criteria it established and explained that no challenges were filed, including on the satellite operators’ amendments (see below).  The WTB validated the Phase II Certifications, but with the following condition (which was also adopted when Phase I Certifications were validated):  if after the disbursement of the ARPs the WTB subsequently finds that the satellite operators should have transitioned additional earth stations, antennas, or feeds, they will be required to complete all Phase II transition work relating to such earth stations, antennas, or feeds “in a prompt and effective manner.”

The FCC Seeks Further Comment on an Incumbent’s C-band Clearing Certification.  Prior to releasing the Orders above, the WTB issued a Public Notice on June 14, 2023, establishing a new challenge cycle for an amended Phase II Certification filed by Eutelsat.  As previously reported, incumbent satellite operators were permitted to file certifications stating that they have completed Phase II clearing of the C-band so that the spectrum may be made available for commercial wireless services starting on June 1, 2023.  Three satellite operators, including Eutelsat, filed their Phase II Certifications on that date, making challenges to those certifications due by June 12.  No party challenged the certifications, but Eutelsat filed two Errata to correct certain data, which triggered a new challenge cycle.  Challenges on the issues raised in the Eutelsat Errata were due June 23, and replies were due June 30.

The FCC Modifies the Conditions Imposed on Automakers Deploying C-V2X Technology in the 5.9 GHz Band.  On July 5, 2023, the FCC issued an Order modifying the Joint Waiver Order it released in April 2023.  That Order conditionally granted a request for waiver filed by the Joint Waiver Parties of certain Commission rules applicable to intelligent transportation systems operating in the 5.895-5.925 GHz portion of the 5.850-5.925 GHz band (5.9 GHz band) so that they can operate Cellular Vehicle-to-Everything (C-V2X) technologies.  The Commission granted a modified waiver as requested by the Joint Waiver Parties to remove the 20 dBm Transmitter Output Power limit it adopted in the Joint Waiver Order.  The Commission found that (i) the EIRP limit that was recommended by NTIA and adopted in the Joint Waiver Order is sufficient to ensure coexistence with other users of the band, and (ii) removal of the Transmitter Output Power limit would not change the interference dynamics among the systems sharing the band.

Wireless Networks and Equipment

The FCC Approves Applications to Help Detect Contraband Phones.  On June 23, 2023, the WTB released a Public Notice approving five Contraband Interdiction System (“CIS”) certification applications filed by CellBlox Acquisitions, LLC, ShawnTech Communications, Inc., Tecore Networks, SOC, LLC, and OmniProphis Corporation (collectively the “Five CIS Applications”).  This approval allows each CIS operator to market and sell its CIS, which will be used to detect contraband wireless devices in correctional facilities, and to begin its phase two on-site testing at individual correctional facilities.  Following the completion of CIS testing, the CIS operators will be required to file a self-certification.  And, once the phase two testing and self-certification process is complete, the CIS operators may then begin using their CISs in conjunction with any Designated Correctional Facility Official’s submission of qualifying requests to disable contraband wireless devices.

The FCC’s CSRIC VIII Holds its Final Meeting.  On June 12, 2023, the FCC released a Public Notice announcing that the Communications Security, Reliability, and Interoperability Council VIII (“CSRIC VIII”) would hold its eighth and final meeting on June 26 at 1:00 pm EDT.  The meeting included presentations and CSRIC VIII votes on three Reports:  (i) a Report on Best Practices to Mitigate Vulnerabilities in HTTP/2 and HTTP/3; (ii) a Report on Recommendations on the Role of the FCC in Promoting the Availability of Standards for More Secure, Reliable 5G Environment Through the Use of Virtualization Technology; and (iii) a Report on Recommended Best Practices to Improve Supply Chain Security of Infrastructure and Network Management Systems.

The FCC Reminds Rip-and-Replace Participants to File Status Reports.  The FCC’s Wireline Competition Bureau released a Public Notice on June 12, 2023, reminding parties approved to receive federal funds to remove and replace equipment that has been deemed to be a national security risk that they must file their next status update on July 10 through the Supply Chain Reimbursement Program Online Portal available here.  Reimbursement recipients are required to file status updates with the FCC every 90 days, beginning on the date on which their applications were approved until the obligation to file expires.

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