FCC OKs Rules for 37 GHz Sharing, Next High-Band Auction Notice, Over Concerns

The FCC approved a process for sharing in the upper 37 GHz band, despite complaints from Commissioners Mike O’Rielly, Jessica Rosenworcel and Geoffrey Starks (see 1904100071). The two Democrats partially dissented. Chairman Ajit Pai, meanwhile, announced that the 37, 39 and 47 GHz auction will start Dec. 10 -- the FCC's third high-band auction. Commissioners approved a public notice on rules for the auction amid complaints by Rosenworcel and O’Rielly. Agency members also approved telecom and cable items.

Commissioners approved the 37 GHz rules the day after NTIA Administrator David Redl provided more clarity (see 1904110076), taking what some see as a strong line in support of DOD. The revised rules weren’t released. While less controversial, the order also addresses satellite use of the 50 GHz band.

“We added greater clarity as to the circumstances under which, and the procedures by which the [DOD] could seek access to additional sites in the upper 37 GHz band,” said Wireless Bureau Chief Donald Stockdale. The FCC also added an additional coordination site at Edwards Air Force Base in California and consolidated four coordination zones at China Lake in California into a single zone, he said. The FCC “strengthened” a requirement that DOD look first to the lower 37 GHz band before using the upper band, he said. Other commission officials said the FCC didn't fully incorporate the rules suggested by NTIA.

“I am firmly against efforts to permit sharing in spectrum bands post-auction,” O’Rielly said. “This item, unfortunately, does just that.” The rules are “far, far, far from ideal,” he said: “While this is a sharing model that should never be replicated and should not serve as precedent for future actions, I will reluctantly support today’s decision.”

“Rather than moving us closer to bringing these bands to market, it injects a whole lot of uncertainty into the viability of parts of these bands just months before they are set for commercial auction,” Rosenworcel said. An order circulated three weeks ago “raised more questions about federal use in the band than it answered,” she said. “A few more details were offered by my colleagues late yesterday, but the process still lacks specificity.” The NTIA letter “sets forth its own version of how the process for coordinating new federal uses would occur,” she said.

Reaction

Pai and Commissioner Brendan Carr defended the order. “The order now provides additional clarity about the rights that federal and private sector users will have,” Carr said. “This additional certainty will help ensure that we have another successful high-band auction.”

Rosenworcel said the FCC should have taken a pause and sought comment. Starks also said the regulator should have waited. “I fully support the plan to auction this spectrum, but I am concerned that we did not give the public a fair opportunity to comment on the process that would apply for new DOD requests to operate in this band,” Starks said. A brief pause would have hurt nothing, he said.

“So much depends on the actual coordination process the FCC came up with,” said Doug Brake, Information Technology and Innovation Foundation director-broadband and spectrum policy. “It doesn't seem Redl is giving them much to work with, but hopefully it will be enough to quell some of the concerns going into the auction.”

High-band spectrum “is a critical component to securing a robust spectrum portfolio that will allow all carriers the opportunity to deploy next-generation technologies,” emailed Steve Berry, president of the Competitive Carriers Association. “CCA underscores the importance that all carriers have access to this valuable spectrum. CCA looks forward to reviewing the adopted item and continues to urge the commission to pursue actions to auction critical spectrum as expeditiously as possible.”

Auction PN

The auction public notice passed 5-0, despite concerns by O’Rielly and Rosenworcel.

O’Rielly complained that the auction was scheduled so late in the year, barely meeting a commitment to hold an auction before the end of the year. “These perpetual delays and exaggerated timelines to design and test auction software and actually start the auction are past the point of acceptable,” he said.

The FCC needs to pivot and refocus on mid-band for 5G, scheduling an auction in the 3.5 GHz citizens broadband radio service band, Rosenworcel said. “We have internationally ceded leadership when it comes to mid-band spectrum.” Other countries, including China, South Korea, the U.K., Spain and Italy, are holding mid-band auctions or otherwise making the spectrum available, she said.

“This is a problem,” Rosenworcel said. “If we continue our current path, prioritizing only millimeter wave, we may find ourselves without a global supply base as mid-band becomes the core of worldwide 5G service. This means less scale, higher costs, interoperability challenges and less security as other nations’ technologies proliferate.”

Not holding a mid-band auction until next year is “problematic,” O’Rielly said during a news conference. “I’ve pushed really hard to try and try to fix that, but I don’t seem to be successful.”

The FCC is “very focused right now” on mid-band spectrum and has been pushing forward since Pai became chairman, Carr said.

“The Commission takes concrete steps toward a December auction of wideband millimeter wave spectrum that will play a pivotal role in ensuring the U.S. continues to lead in deploying 5G,” said Joan Marsh, AT&T executive vice president-regulatory and state external affairs.

USF

Extending rural telco rate floor reporting requirements for another year got O'Rielly to join the other four in eliminating the rate floor itself (see here). His support had been a question mark (see 1904100040). That reporting requirement means "at least some accountability" toward making sure past USF system abuses don't return, he said. Wireline Bureau Chief Kris Monteith said the addition of that reporting requirement, through July 1, 2020, was the one substantive change to the draft order. The approved item wasn't released Friday.

Echoed Starks, the rate reporting requirement should let the agency see if voice providers adopt artificially low rates in response. “I will be watching to make sure that voice service providers do not take advantage,” he said.

O'Rielly said he and Pai discussed introducing means testing revisions to the high-cost program and chairman more than agreed to "more than explore" the idea though Pai didn't guarantee such means testing. O'Rielly repeatedly has advocated for means testing (see 1705180061).

Pai called the rate floor "a regulatory Catch-22," forcing rural telcos to choose between raising local phone service rates or losing universal service support. Its demise is "a big win for rural Americans," he said.

Rosenworcel used the item to reiterate her criticisms about proposed USF caps (see 1903270042), which she called “unacceptable.”

USTelecom Round 2?

Commissioners urged that the agency act on other parts of the pending USTelecom forbearance petition as they 5-0 approved forbearance on a variety of duties on incumbent carriers (see here).

O'Rielly looks "forward to deciding the remaining issues in due course." Rosenworcel said the agency "needs to resolve the outstanding issues ... with a decision" before the Aug. 2 deadline when they automatically would be granted. Pai's office didn't comment.

As the FCC continues its review of USTelecom’s broader petition, "it will see the value in further removing outdated regulations that reduce investment incentives and delay transitioning to next-generation services," AT&T said. CenturyLink looks "forward to working with the commission to address the remaining legacy regulations" in the USTelecom petition. Incompas said it didn't oppose the removal of duplicative pole attachment requirements, but "it’s time for the FCC to deny, unequivocally," USTelecom's other asks.

"USTelecom’s dangerous 'competition cut off' [is] a failed strategy that reeks of the past and taxes the future," Incompas said. USTelecom said Friday's vote "provides significant and overdue relief to smaller carriers and enables providers to continue their focus on broadband investment and deployment."

Channel Change

Starks was a lone partial dissent on approval of ending the requirement of cable channel lineups (see here).

Starks opposed eliminating rules requiring cable operators make channel lineup information available through their public files. Public files always were supposed to be a source of information that might have also been available elsewhere, he said. The cost of requiring lineup information be included in public files “seem[s] to be incredibly low,” he said. But when he requested those rules be retained, the ask “was denied,” he said.

Axing the channel lineup requirements "is a fine example of ‘clearing the regulatory underbrush,’ which the FCC's Media Modernization proceedings are designed to promote," America's Communications Association said.

Meeting Notebook

Rosenworcel said during a news conference it’s unclear how much work the FCC is doing on the C band and other mid-band spectrum. “We do not have an auction scheduled, I do not have any materials before me,” she said. “That suggests a lack of progress.” O’Rielly said he has been pushing for two years for the C band to be reallocated. “That debate is over,” he said. “Now it’s just a matter of what is the format, what are the specifics and what is the timing. … I’m ready and willing to close that discussion and move forward.” If the federal government "is serious about 5G, they ought to be focusing on getting [citizens band radio service] and the C-Band spectrum into the market as quickly as possible,” New Street’s Jonathan Chaplin told investors Friday. The value of high-band is relatively low, he said, noting that the 24 GHz auction is “petering out” at around $2 billion, or less one cent per MHz/POP. The auction closed Friday with about $1.99 billion in gross bids.

Starks and Rosenworcel said during a news conference the administration needs to do a better job building a broadband database. “We need to start to figure it out fast,” Starks said. “This administration has become a repeat offender, a serial offender” on data. The administration’s record on data has been “embarrassing, shameful,” Rosenworcel said. FCC maps are “lacking” but require better data, O’Rielly said. Form 477 data wasn’t meant for broadband mapping, he said.

Carr said he’ll have more to say soon on federal rules that affect wireless infrastructure deployment, which is expected to be a big FCC infrastructure focus (see 1902200048). “None of the details are fleshed out,” Carr said. “It’s an issue that I’ve been looking at. … The further west you move in this country, the higher percentage of federal lands.” Carr told reporters he's also focused workforce development and plans an announcement in coming days.