Even Mostly Closed, FCC Works on 5G Auctions; One Auction Ends

The FCC is continuing to prepare for the 24 GHz auction and future auctions, including pushing forward on the C band and other bands being looked at for 5G. The 28 GHz auction closed Thursday. Nevertheless, the agency remains constrained in how much staff can do as the longest shutdown in federal history continues. “Staff continues to work on future auctions,” a spokesperson emailed Thursday.

Chairman Ajit Pai called the close of the 28 GHz auction “a significant step toward maintaining American leadership in 5G.” Pai said the FCC can’t “rest on our laurels -- and won’t.” He promised action on other bands: “Our 24 GHz auction will begin soon, and we will then hold an auction of three more spectrum bands later this year.”

The auction closed after 176 rounds, with $702.6 million in provisionally winning bids. The FCC closed the auction after that round had “no bids, withdrawals, or proactive activity rule waivers.” The agency promised a notice next week that announces the upfront payment deadline and bidding start date for the 24 GHz auction.

CTIA is "pleased to see the successful conclusion of the first 5G high-band spectrum auction and we look forward to additional auctions in 2019,” said Scott Bergmann, senior vice president-regulatory affairs.

While some staffers dedicated to auctions are working as normal, although without a paycheck, others are permitted to do work for only an hour per day or not at all, industry lawyers said.

The FCC’s shutdown rules permit work on items related to “spectrum auction activities authorized by section 309(j)” of the Communications Act. The agency, in one example, has posted four comments since it closed in docket 18-122, the C-band docket. The FCC left in place a Jan. 7 deadline for petitions for reconsideration on the citizens broadband radio service order because it’s auction related.

Staffers still working have been able to do things involving any auction, said Peter Tannenwald, broadcast lawyer at Fletcher Heald: “They can do whatever they want to do and most of them want to go to work.” One problem is other employees, like engineers in the Office of Engineering and Technology, often aren’t there now and aren’t available to answer questions, he said. “There’s some limitation as to what you can get done.”

The FCC seems to be defining auction activity broadly, Tannenwald said: “If [an item] has the word auction in it, they’ll do it.” The shutdown rule doesn’t really prohibit anything, “it just says certain things aren’t being paid for,” he said. Tannenwald said his work has focused on full-power station repack and low-power displacement. “All of that is full-speed ahead,” he said. “The engineers are granting the applications. The settlements are being ruled on. The lawyers are there.”

“That during the shutdown the FCC staff can work on a C-band order without being distracted by outside meetings with people like me could actually help get the order out faster,” said Preston Padden, C-Band Alliance head-advocacy and government relations.

“A little-known fact about the FCC is that it makes money,” emailed Robert McDowell of Cooley. “It generates huge profits for taxpayers. Slowly but surely, the FCC is expanding the scope of what it can work on during the partial shutdown. Auctions -- both imminent and more distant -- drive revenue to the U.S. Treasury and, therefore, become attractive to policy makers. So it’s not surprising that work would continue on these money makers.”

Other industry officials who work with the commission said how much it will be able to do even on auctions remains uncertain.

“I'm not sure how closely related it has to be to an auction, and whether it means a rulemaking that might result in an auction,” said Harold Feld, Public Knowledge senior vice president. “The dodge here is that [Section] 309 allows the FCC to use auction revenue to offset the expenses associated with running the auction. I am not sure if there is any guidance on what that covers.”