FCC Agrees to Seek Comment on Revised 3.5 GHz Rules, Over Rosenworcel Dissent

The FCC approved an NPRM Tuesday proposing to rewrite parts of rules for the shared 3.5 GHz band, over a dissent by Commissioner Jessica Rosenworcel. Commissioner Mignon Clyburn concurred rather than approve, saying she would have preferred the FCC left the rules as is. The votes were as predicted, with all three Republicans voting yes (see 1710180043). Both Democrats voted against the FCC allowing stations to host studios outside their communities of license (see 1710240062).

The notice focuses on priority access licenses (PALs), one of three tiers in the band, and asks questions about “longer license terms with the possibility of renewal; larger geographic license areas; and modifications to the rules governing license auctions, secondary market transactions, and certain technical criteria,” said a news release. The changes are intended to make the 3.5 GHz spectrum more useful for 5G, the FCC said.

Earlier rules, developed during the Obama administration, were broken, said Commissioner Mike O’Rielly, who oversaw the proposed rewrite. “Regardless of the outrage and hyperbole found in some ex parte letters and press articles, the item does not tentatively conclude that PALs will be auctioned exclusively by partial economic areas,” O’Rielly said. “Instead, we are seeking comment on a myriad of options.” Some claim the proposed changes are intended to turn 3.5 GHz into a 5G-only band for large, national carriers, he said: “Ridiculous.”

There is perception the FCC somehow promised that “rural providers and other potential users” would be able to buy PALs. But the FCC “should never promise or provide handouts to any class of entities that may be favored at the time,” he said. “I don’t know if it was actually that explicit or not, but it is a categorical mistake to have allowed the perception that it was.” O’Rielly promised he's open-minded on how the rules will look and predicted rules ready early next year.

Companies have invested millions of dollars in the 3.5 GHz Citizens Broadband Radio Service (CBRS) band, Rosenworcel said: “More than 200 experimental authorizations have been granted. ... Protocols regarding operations, interoperability, security, and device testing are well underway. Product certification programs have already begun. All of that, however, stops short with this rulemaking.” Policies on spectrum have been audacious and set an example for the rest of the world, Rosenworcel said. But the NPRM is written to help carriers at the expense of everyone else, she said. “We are impeding real progress,” she said. “We are betraying our hard-won spectrum tradition of leading the pack and changing the paradigm.”

Commissioner Mignon Clyburn would have preferred that the FCC left the 2015 rules in place. But she said she got changes to the NPRM that allowed her to support it. “My colleagues agreed to back away from proposing to increase the geographic area size of the PALs and just seek comment,” she said. “The NPRM now includes new language, asking about offering, in urban and rural areas, a mix of larger PALs and PALs at the census tract levels.”

The 3.5 GHz band “is about creating something different,” said Commissioner Brendan Carr. “We need a new tool.”

Statements followed well-developed lines on the lengthy debate. “Today’s action will unlock new investment, jobs and innovation and help the United States win the global race to 5G wireless,” said Scott Bergmann, CTIA vice president-regulatory affairs.

The Wireless ISP Association said the NPRM is a “step backward” for members. “Once again, the FCC has prioritized the ‘wants’ of the mobile industry over the ‘needs’ of rural Americans,” said Chuck Hogg, WISPA chairman. “Using census tracts for Priority Access License sizes allows all interested bidders to compete and lets the market determine the highest and best use of this unique public resource.”

"Consumer advocates and rural broadband providers are concerned the FCC will rewrite the rules to make licenses affordable for only the largest mobile carriers and thereby deny spectrum access to thousands of other companies,” said Michael Calabrese, director of the Wireless Future Project at New America. “America's future 5G ecosystem will be less robust and competitive if the FCC rigs the auction to benefit a single big carrier business model.”