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What’s New in Wireless - December 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 National Telecommunications and Information Administration’s release of its long-awaited National Spectrum Strategy.  

Regulatory Actions and Initiatives

Wireless Spectrum

NTIA Releases its National Spectrum Strategy.  On November 13, 2023, President Biden released a Memorandum on Modernizing United States Spectrum Policy and Establishing a National Spectrum Strategy (the “Memorandum”), and the National Telecommunications Information Administration (“NTIA”) released its National Spectrum Strategy (the “Strategy”) that the Memorandum directs it to develop.  The Memorandum, among other things, reaffirms the joint management of the Nation’s spectrum by NTIA and the Federal Communications Commission (“FCC”), consistent with the August 2022 Memorandum of Understanding (“MOU”) between NTIA and the FCC; establishes the Interagency Spectrum Advisory Council (“Council”); and creates a White House-led dispute resolution process if NTIA and an agency disagree over the Administration’s position on a spectrum issue and establishes how the White House will resolve those issues.  The Strategy articulates four pillars to strengthen interagency coordination, promote innovation, and ensure efficient spectrum use:  Pillar One announces the in-depth near-term study of nearly 2,790 megahertz of spectrum for potential repurposing; Pillar Two focuses on improving coordination on spectrum decision-making through the establishment of a new spectrum planning process to help spectrum users make prudent long-term investments; under Pillar Three, the U.S. Government will, within 12-18 months, advance research, create investment incentives, and set forth measurable goals to advance spectrum access technology, with an emphasis on spectrum sharing; and Pillar Four creates a national spectrum workforce plan and aims to improve policymakers’ understanding of spectrum considerations.  NTIA, in collaboration with the FCC and in coordination with other federal agencies, will prepare and publish an Implementation Plan by March 13, 2024, that establishes specific outcomes associated with each strategic objective.  NTIA posted a Request for Public Input on November 29, 2023, seeking comment on the Strategy by January 2, 2024.  The corresponding Federal Register Notice contemplates that parties may also wish to meet with NTIA about implementation proposals and provides instructions about how to request a meeting. 

In response to the Strategy, FCC Chairwoman Rosenworcel stated:  “The next chapter in our wireless leadership is once again going to require us to think anew – and the National Spectrum Strategy is a start.”  Commissioner Gomez added:  “Our Nation’s blueprint is critical for continuing to create more access to spectrum, advance innovation in spectrum management and use, and maintain our global leadership in wireless innovation, particularly as we go into the 2023 World Radiocommunication Conference in Dubai.”  Commissioner Carr, however, was critical of the Strategy, asserting that “[a]fter nearly three years of study, the Biden Administration does not commit to freeing up even a single MHz of spectrum.  Instead, they are announcing that they will continue studying the issue for years to come.” 

The FCC Sets the Initial Status Conference for a C-band Earth Station Operator’s Reimbursement Claim.  On November 14, 2023, the FCC’s Administrative Law Judge released the Initial Case Order in the Mongoose Works, Ltd. (“Mongoose”) case, setting the initial status conference for December 5, 2023, at 10:00 a.m. EST.  The FCC’s Enforcement Bureau, as a party to the case, and Mongoose were required to submit the following information:  (i) a proposed schedule for this case, including pre-hearing and post-hearing matters; (ii) a description of the type of discovery anticipated, if any; and (iii) a description of expected pre-hearing motions, including any motions for protective orders, before November 29, 2023.

The FCC Selects the 3.45 GHz Band Reimbursement Clearinghouse.  On November 2, 2023, the FCC’s Wireless Telecommunications Bureau (“WTB”) released an Order determining that the selection of Summit Ridge Group, LLC (“Summit Ridge Group”) to serve as the 3.45 GHz Band Reimbursement Clearinghouse satisfies the criteria set forth in the FCC’s rules for the Clearinghouse, the 3.45 GHz Second Report and Order, and the 3.45 GHz Clearinghouse Selection Process Order.  The WTB found that Summit Ridge Group has adequately described its qualifications to support the Clearinghouse’s role in the transition, its relevant experience, and how it would adopt and follow all relevant industry best practices to facilitate the transition of the 3.45 GHz band.

The FCC Hosts a Webinar on Tribal Access to Spectrum.  The WTB and the FCC’s Office of Native Affairs and Policy released a Public Notice on November 8, 2023, which announced their virtual webinar on November 16, 2023, at 1:00 p.m. EST that provided an overview of their Public Notice on Tribal access to wireless spectrum and related data.  That Public Notice, on which we previously reported, seeks comment on ways in which the FCC can improve its understanding of how and the extent to which Tribal Nations and the Native Hawaiian Community are able to access wireless spectrum.  The FCC intends to use that information to develop policies to increase broadband connectivity in Tribal communities.  Comments on that Public Notice were due November 30, 2023.

NTIA Releases its Report on Federal Spectrum Transitions.  On November 14, 2023, NTIA issued its Report (as it is required to do by statute) on the status of the funds being expended pursuant to the Commercial Spectrum Enhancement Act.  The Report is based on data submitted by federal agencies and describes the progress the agencies have made in transitioning from spectrum in the following bands:  Advanced Wireless Services (“AWS”)-1 involving federal spectrum in the 1710-1755 MHz band; AWS-3 involving the 1695-1710 MHz and 1755-1780 MHz bands; the 3.5 GHz auction of Priority Access Licenses in the 3550-3650 MHz band; and the 3.45 GHz Service in the 3450-3550 MHz band.

Wireless Networks, Infrastructure, and Equipment

The FCC Grants Two Rip-and-Replace Extension Requests.  On November 28, 2023, the FCC’s Wireline Competition Bureau (“WCB”) released an Order granting two petitions requesting an extension of the FCC’s deadline for removing, replacing, and disposing certain equipment and services that have been deemed to pose a national security risk.  The WCB granted the petitions based on supply chain issues and labor shortages that have prevented the parties from fulfilling their obligations.  The WCB noted that the Petitioners’ inability to comply with the removal, replacement, and disposal obligations are “rooted in broader supply chain issues over which they have no control.”

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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.