With Some Wide C-Band Agreement, Issues Coming Down to Spectrum Amount, Method

Areas of wide agreement among C-band users, satellite operators and other stakeholders are emerging, and with them issues that need resolution before the FCC acts or through an eventual order, experts and a policymaker said Tuesday. All agree that some frequencies will be repurposed for 5G, said FCC Commissioner Mike O'Rielly. "There is a broad consensus on at least a couple of points," said NAB Associate General Counsel Patrick McFadden: Spectrum will be repurposed, content delivery using the satellite band should be protected, and "end users should be held harmless."

Panelists at the Capitol Forum event broadly agreed the FCC will likely act in coming months (see 1910040008). They said that it's better to take that full period to get the best repurposing and auction process rather than rushing to OK rules right away. O'Rielly is "concerned about speed. But a month here or there to make sure it's perfect, is probably not all that troubling," he said.

Panelists agreed the commission may act this year or early next. Points of disagreement remain how on much is cleared for 5G and whether the method is a private or public action. Some panelists Thursday had discussed their recommendations with FCC officials (see 1910080017). The commission declined to comment now.

O'Rielly's "optimistic we can find a path forward" that is quick, and that may be via a private, not FCC, auction of the airwaves. "All the good people in this room are going to fight over the details" at the event, he said. "If you lock the doors, you would probably come to solutions on a lot of things," he said later. "They’re all solvable," he said of any concerns. "It's really trying to get some of the parties, they are dug in on their approach" to come to further agreement, he suggested. For the FCC, "the landing spot is going to be somewhere around 300" MHz to move from satellite to 5G use, O'Rielly said. "Anyone who is not there is probably delusional."

"I’ve gone to all the parties and said don’t be greedy about this," O'Rielly said. "It’s not an opportunity to do every little thing that I want in the moment" and to "extract" things, he added. "I’ve been told that one of the reasons for having some sort of voluntary payment would be for some sort of connectivity" such as with fiber as under the plan from America’s Communications Association, the Competitive Carriers Association and Charter Communications, O'Rielly told us in Q&A. Such a proposal needs "to be fleshed out," he added. "People talk about their plan but I don’t know that it all fits together for me right now."

On legislation urging the FCC hold this auction and not private players (see 1909270024), O'Rielly noted he'd "have to live with" that if it becomes law. "I think it could delay a number of things," he told us. "I’m trying to get this process moving. I've been working on it for three years. I can finally see the light." There "aren’t other great mid-bands available," he added. They're "maybe 100 times more difficult than this band," O'Rielly said.

Challenges

Litigation, particularly if the FCC itself doesn't conduct the auction, is possible, many agree. "Almost everything that’s worthy and extensive at the commission gets challenged," O'Rielly said. He’s not too worried "about legal basis." It's possible litigation could be avoided, he continued.

Communications Act Section 309(j)(1) would let the FCC "consider alternatives" beyond the agency running bidding on spectrum, said C-Band Alliance Head-Advocacy and Government Affairs Peter Pitsch. "The legal questions are basically misplaced or are not that persuasive." CBA wants a private auction and is working on a plan to increase the 200 MHz it would clear. CBA's recommendations are a "novel approach," said ACA Senior Vice President-Government Affairs Ross Lieberman. "It’s going to be challenged," he said of a non-FCC auction. The ACA, CCA and Charter plan could clear 370 MHz.

While Pitsch "makes as good a case as he can with what little he has to work with" on the section, a private auction would violate it and could lead to legal challenges, said New America Open Technology Institute's Wireless Future Project Director Michael Calabrese during a later discussion. "Virtually everyone is opposed to a private auction except the two biggest mobile carriers and their suppliers."

"Everyone’s agreed that there can be a win to be had here for wireless, for 5G," said Covington & Burling's Matt DelNero, counsel for content companies. "But it's going to be a major undertaking." Other such moves overseen by the FCC "have been more complex than it’s been predicted on paper," including recently with the 800 MHz rebanding, he added. "The yardstick by which we’ve measured any proposal" is "not breaking the content ecosystem," DelNero said.

The Wireless ISP Association thinks the FCC can easily help bridge the digital divide via a related action. Vice President Louis Peraertz noted WISPA hopes the agency OKs some wireless sharing in the upper portion of the band.

Participant Talks

Many at the event are talking to each other as vying proposals seek buy-in, they told us in Q&A.

Charter continues "to talk to everybody," said Vice President-Regulatory Affairs Colleen King. People are "probably sick of getting phone calls" from her, King said. "This is a really complicated proceeding. So trying to figure out how we can make this work is very important to us." ACA has "had a couple of dozen hours of conversations with programmers, including broadcasters, we’ve had conversations with fiber providers" and others affected by the plan, Lieberman said. Others, including NAB's McFadden, also said they're talking to everyone.

ACA and CBA disagreed whether the cable association was sufficiently able to discuss satellite operators' plan. The CBA plan has "numerous supporters," said Pitsch, declining to detail who backs his coalition. "We have deep support among customers and we have deep support among carriers" and 5G vendors, he added. Lieberman replied to him later that "we would welcome that outreach so we can understand what it will mean," referring to CBA's plan. Pitsch responded: "I have spent at least one hour in your conference room." Lieberman replied, "Point taken, one hour."

Others said CBA has been available to talk. "There’s been no issue" of getting "information and an exchange of views," said Covington's DelNero. He said content companies "essentially support the 200 MHz plan" from CBA.

Nokia wants the C band freed up soon. "It is time to drop the curtain and make a decision here," said Americas Region Vice President-Policy and Public Affairs Brian Hendricks on a later panel. "There are values to moving quickly." There's "just no indication that the commission could do it" soon, such as next year, unless the agency prioritized holding this auction, he added. U.S. Cellular Vice President-Federal Affairs and Public Policy Grant Spellmeyer thinks "the FCC should buckle down and prioritize this auction and if that means pushing other things back, they need to do that." The carrier wants "to come and buy C band," he said. He was critical of CBA's recommendations and Lieberman noted the company supported elements of the ACA-backed rival system.

"A secondary market transaction" would "happen much, much faster" than an FCC-led auction, said Verizon Assistant Vice President-Wireless Policy Development Patrick Welsh. "The FCC is poised to make a decision and we encourage them to act quickly." CBA "has a coalition of the willing not just to auction spectrum but to clear it," Welsh said. "When the incumbent is not on board, it takes far too long."

T-Mobile Vice President-Government Affairs, Technology and Engineering Policy Steve Sharkey agreed "we need to have the incumbents on board with clearing." But some plans don't have all elements in place, he added: "We need a significant amount of spectrum in this band" freed up, and his company wants an incentive auction of up to 500 MHz. The 200 MHz that CBA proposes "is insufficient for the competitive needs of the country," Sharkey said.