FCC Proposes Process for Coordinating With DOD on Upper 37 GHz Band

An FCC order on the upper 37 GHz band, teed up for the April 12 commissioners' meeting, shows the length the agency will go to clear spectrum for 5G, as an ongoing auction tops $1 billion. The FCC proposes rules for coordinating with DOD on future use of the upper 37 GHz band beyond current DOD sites located there. The plan “strikes a reasonable balance,” said the draft order posted Friday. Chairman Ajit Pai unveiled the agenda Thursday (see 1903210062).

Two other drafts would eliminate a USF rate floor and grant some USTelecom forbearance requests. Another would let cable operators no longer keep channel lineup copies at local offices.

A 37 GHz footnote said the FCC will also address the lower 37 GHz band: “We intend to take steps towards specifying rules for sharing the band within three months, including exploring whether giving priority access to military use of the 37.0-37.2 GHz band would facilitate usage of the Lower 37 GHz band.”

It hasn’t received “any record information” on additional federal sites that need to be protected beyond 14 sites, it said. Defense “has informed us, however, that it expects to deploy at additional sites in the future, and that the lower 37 GHz band (37.0–37.6 GHz) may not be sufficient.” The FCC said failure to lay out a coordination mechanism “could create uncertainty for potential non-Federal bidders in the auction for spectrum in the Upper 37 GHz band” and “we believe it critical to address the need for coordination here.”

The Pentagon “may submit requests for access to the Upper 37 GHz band for specific additional military sites, such as military bases and ranges,” the draft said. Requests would be “when the proposed operations could not be accommodated" in the lower 37 GHz band, it said: “FCC staff would review the request to assess any potential impact on non-Federal licensees, contacting the potentially affected licensees and facilitating direct coordination with the Department.”

The plan is viable because most future DOD use would be in remote areas and requests would be “relatively rare” since most operations can be accommodated in the lower 37 GHz band, the draft said: “The technical characteristics of operations in this region of the spectrum, marked by high path losses and use of advanced antennas and adaptive power control, can minimize any significant impact on licensees’ operations.”

24 GHz and Beyond

Bids in the 24 GHz auction totaled $1.09 billion at Friday's close of round 20. That's on a gross basis.

“The commission is being appropriately proactive in trying to create a coordination process that maximizes the amount of spectrum available for auction,” said Free State Foundation President Randolph May. “The coordination process seems like a reasonable accommodation, but, obviously, at the end of the day, the process is only going to achieve its objective if the federal spectrum managers cooperate and acquiesce.”

The order follows controversy over the 24 GHz band (see 1903130057) before the ongoing auction, said Robert McDowell of Cooley. “The 11th hour controversy there is apparently depressing auction activity because of the uncertainty regarding how much, if any, harmful interference actually exists with federal incumbents," McDowell said. "So the FCC and federal users have to take extra measures to avoid a similar scenario with the 37 GHz proceeding, hence the extra degree of caution.”

“The FCC is right to move forward with the auction sooner rather than have perfect clarity about what to expect in the upper 37 GHz band,” said Doug Brake, Information Technology and Innovation Foundation director-broadband and spectrum policy. “We are really only talking about a handful of sites using 37 GHz spectrum now, and it’s unlikely we’d see them balloon.”

Auction Rules

The FCC also proposed a vote for rules for the 37, 39 and 47 GHz band auction. It would use an ascending clock format for Auction 103. The auction includes only upper 37 GHz band licenses.

The clock phase “serves as both the forward and reverse portions of the incentive auction by determining the prices and winners of new flexible use licenses as well as determining the amount of incentive payments to those incumbent licensees that relinquish spectrum usage rights,” the draft said. The number of licenses available depends on decisions by 39 GHz licensees “to either accept modified licenses, reconfigured to conform with the new band plan and service areas, or to relinquish all their existing spectrum usage rights in exchange for a share of the auction proceeds,” the FCC said. If all relinquish, the agency could sell rights to 3,400 MHz of spectrum across the three bands, or 34 licenses a market, the draft said.

The FCC also released a draft NPRM on modernizing the rule for over-the-air-reception devices (OTARD). The Wireless ISP Association requested the NPRM, the draft said. “We propose to eliminate the restriction that currently excludes hub and relay antennas from the scope of the OTARD provisions,” the FCC explained. “The Commission’s decision in the 2000 Competitive Networks Order to limit the applicability of the OTARD rule reflected the infrastructure needs of a previous generation of wireless technologies that relied on larger antennas spread over greater distances to provide service to consumers.”

Wireline, Cable Orders

The commission would end a USF rate floor, "avoiding a nearly 50% increase in many rural Americans' telephone rates," said a wireline draft order summary. The amount, which reduces rural telco USF support if they don't charge a minimum monthly amount, has been frozen at $18 since 2017 but is set to rise to $26.98 on July 1. It "makes no sense as a matter of policy," and "to the extent the rate floor ever served a public purpose, we find that purpose long since been carried out," said the draft. It agreed with many parties that "the rate floor is fundamentally inconsistent with the direction of the Communications Act to advance universal service while ensuring that rates are just, reasonable, and affordable." Based "on an extensive and near-unanimous record, we eliminate the rate floor" and its related reporting and customer notification obligations, it said.

The FCC would scrap "unnecessary, outdated, and burdensome regulations" of ILECs, including Bell operating companies, in another draft order granting parts of a USTelecom petition. "We grant forbearance from: (1) the requirement that independent rate-of-return carriers offer long-distance telephone service through a separate affiliate; (2) nondiscriminatory provisioning interval requirements applicable to BOCs and independent price cap carriers; and (3) the redundant statutory requirement that BOCs provide nondiscriminatory access to poles, ducts, conduit, and rights-of-way."

"This order does not address, and should not be construed as prejudging, USTelecom’s request for forbearance from obligations arising from sections 251(c)(3) and (4) of the [Communications] Act relating to unbundled network elements and resale," said footnote 3. "That request remains pending and the statutory deadline for Commission action on it is August 2."

Commissioner offices didn't comment on either wireline draft.

The FCC, which had asked if it should ax the requirement cable operators make their channel lineup available via their online public inspection files, now wants to do so, said the channel lineups draft. The order also would end its requirement cable operators maintain at their local office a current listing of their channel lineups. It said in both cases, the requirement is no longer needed given widespread availability of channel lineup information from sources more likely to be used by customers and others seeking the information. The NPRM passed 5-0 in April, though then-Commissioner Mignon Clyburn voiced concerns about the online public inspection files language (see 1804170038)