Kennedy Pressures on C Band; FCC to Study Clearing 3.1-3.55 GHz Band

Commissioners approved an NPRM 5-0 on clearing 3.1-3.55 GHz, seen by some as a sleeper item with big implications. The item sparked a debate among members on whether the FCC is doing enough on mid-band spectrum. Senate Appropriations Financial Services Subcommittee Chairman John Kennedy, R-La., sat through 90 minutes of the meeting, signaling his ongoing concerns about setting rules for an upcoming auction of the 3.7-4.2 GHz C band.

“I hate to have to leave, but I have a vote that was just called,” Kennedy told us. He’s not the only one with concerns about the “valuable taxpayer resource” and how it’s allocated. “Other senators are concerned,” he said. “House members are concerned. I can tell you that [President Donald Trump] … is concerned, because I’ve discussed it with him.”

The legislator is pleased with FCC Chairman Ajit Pai’s call for a transparent public auction. “I was impressed with it and I thank him for it,” he said. “My goal is to protect … a very valuable taxpayer resource and get 5G moving.” Kennedy’s not “naive” and realizes “there’s a lot of money at stake here and there are some swamp creatures, both in and out of government, who would like to see this done in a smoke-filled backroom and I’m opposed to that.”

Kennedy was noncommittal about incentivizing C-band satellite operators as part of clearing and an auction procedure. "I have read the Communications Act [and] we need to comply with the law and do what's best for 5G and the American taxpayer," he told us."Equally, in that order. And we need to do it in front of God and country and the American people."

Pai declined to offer a timetable for an FCC decision on the C band. The agency has to take a number of “administrative steps” before it can hold an auction, he told reporters. “We are actively working on those steps.”

NPRM OK'd

The item approved Thursday proposes to remove and relocate nonfederal users in the 3.3-3.55 GHz portion of the band and seeks comment on “the relocation options and transition mechanisms for these incumbent non-federal users to the 3.1-3.3 GHz band or to other frequencies.” FCC officials said they're waiting for NTIA recommendations on the band.

Commissioner Jessica Rosenworcel said the NPRM is the “kind of forward-looking, proactive effort we need to start freeing up valuable mid-band spectrum for next-generation 5G.” But Rosenworcel said the FCC has otherwise underperformed. “We have yet to auction a single swath of mid-band spectrum,” she said.

“To date, we have brought exactly zero megahertz of mid-band airwaves to market in the 5G era,” Rosenworcel said. “Rather than recognize this reality, this agency has simply insisted that all bands matter and all is well. But that is clearly not the case when you look at efforts abroad or right here at home where our carriers are champing at the bit for mid-band resources.”

“To realize the true potential of 5G, the commission will need far more mid-band spectrum than is currently available or already in the pipeline,” said Commissioner Mike O’Rielly. The mid-band is “ideal” for 5G because of its propagation characteristics, especially in rural markets where high band is unlikely to be deployed, he said.

O’Rielly was “slightly disappointed” the FCC didn’t move nonfederal users out of the lower 200 MHz, “similarly starting the process for introducing next-generation services into 3.1-3.3 GHz,” he said: “As this is ultimately our intention, it doesn’t make sense to me to consider moving the current non-federal users of the upper portion of the band into the lower portion of this band when it is clear that we must either clear or share that spectrum, too.”

O’Rielly noted the FCC plans a 3.5 GHz auction in June and will likely do a C-band auction next year. “While the spectrum schedule is great news, we will need even more to meet the need of all those interested in deploying 5G,” he said. At the recent World Radiocommunication Conference, there was agreement to study the 3.3-3.4 GHz band for international mobile telecom, he noted.

Carr said the agency is focused on mid-band, especially the 3 GHz band. “At the top of 3 GHz, we are focused on a 2020 auction of C-band spectrum,” he said. “In the middle of the band, we have a 2020 auction of [citizens broadband radio service] spectrum lined up. And here at the bottom of 3 GHz, we are now taking steps that could make available up to 250 MHz of additional spectrum for advanced wireless services, including 5G.”

'Drawing Attention'

“I like to think that by drawing attention to this issue we are finally starting to pay attention,” Rosenworcel told reporters. “The rest of the world has chosen to focus its early 5G energies on mid-band spectrum because it has a mix of capacity and coverage that makes it possible to serve both urban and rural areas. … The rest of the world is leaving us behind.”

The FCC may need clarification from Congress on how it can compensate existing C-band license holders, and on how the money that comes in can be spent, Rosenworcel said. “It’s my hope that both the House and Senate will be able to work on those issues.” The legal underpinning for an auction is tough without legislation, she said: “If we want to avoid future lawsuits or further delay, the best case forward” is legislation.

The C-band auction has been promised for next year, said Commissioner Geoffrey Starks. “Now that we are focused on a public auction … for the C band -- we’re already behind on that -- we need to really get moving as quickly as possible, as quickly as practicable, to make sure that we get that auction rolling.”

The item is potentially significant, with implications for the citizens broadband radio service band, emailed Jeffrey Westling, R Street Institute technology and innovation policy resident fellow. “The NPRM proposes to move the non-federal operations in the 3.3-3.55 GHz portion of the band to either the lower portion of the band, or potentially find a new band altogether for the operations,” he said. “This would open the door to the shared use of 250 MHz of mid-band spectrum. As it stands now, the Commission appears to be mainly focused on the upper portion of the band (3.3-3.55 GHz), but the lower portion band remains of interest to the commission as well. … This also could benefit the neighboring 3.5 GHz band: moving some of the non-federal users in the 3.3-3.55 GHz band could lower the potential for adjacent band interference to CBRS.”

Enforcement Actions

The FCC is proposing to impose a $9.99 million fine on Kenneth Moser and his telemarketing company, Marketing Support Systems, "for apparently making more than 47,000 unlawful spoofed robocalls over a two-day period," it said, after a 5-0 vote. Moser faces the fines after an Enforcement Bureau investigation found he spoofed the phone number of another telemarketing company, HomeyTel, and sent automated messages under HomeyTel's number sharing false and disproven allegations that a San Diego political candidate had committed sexual assault. The candidate sent a cease-and-desist letter to HomeyTel, whose business provides legal robocalling services to political candidates. HomeyTel contacted the local sheriffs' office after the letter and complaints from consumers who'd received the illegal robocalls. The local law enforcement officials directed HomeyTel to the FCC.

"We're pleased with the FCC that they took this action" and hope it sends a clear message that elections are not to be messed with, said Conrad Braun, former owner of HomeyTel, who now runs the business. HomeyTel worked hard to keep fully compliant with telemarketing laws, and Moser's actions "really hurt our reputation," Braun said. Moser didn't comment.

The violations took place in May 2018 in the lead-up to the California primary. The FCC said Moser violated the Truth in Calling Act by identifying himself as a competitor with intent to do harm. Because he sent more than 11,000 prerecorded messages to wireless phones without consent, and didn't identify himself and his phone number on the robocalls, he's subject to a citation for violating the Telephone Consumer Protection Act, the FCC said.

Officials acknowledged EB fines go largely uncollected. Some said the agency welcomes pending legislation that would offer tougher enforcement tools.

FCC Meeting Notebook

Commissioners unanimously approved two notices of apparent liability proposing maximum forfeitures for two alleged Boston-area pirate radio operators. Acerome Jean Charles, operator of Radio Concorde, faces a $151,005 proposed forfeiture, and Radio TeleBoston operator Gerlens Cesar faces $453,015 in fines because he operated three separate transmitters, said EB field counsel Matthew Gibson. Cesar’s possible forfeiture is the largest ever proposed by the FCC against an unlicensed radio operation, said a release. Both operators received multiple written warnings but continued to broadcast, the releases said.

O’Rielly praised the fines but said they should be higher, and suggested the FCC should take a broader view of what constitutes multiple incidents to increase forfeiture amounts. O’Rielly conceded that pirate radio forfeitures often go unpaid, but said higher dollar amounts would help attract the interest of DOJ in collecting the fines and prosecuting the cases. Starks said the pirate radio operators made the wrong choice, but the frequency of such broadcasting is a sign something is wrong. “I cannot help but think about what impact the commission's long-standing abdication of our diversity obligations has had on the developing of unlicensed stations serving immigrant communities,” he said. There are “many legal alternatives to unlicensed broadcasting,” said Pai, citing low-power FM application windows and internet streaming as options. “We could have the best of both worlds, the rule of law and diverse programming on the air.” Neither Cesar nor Jean Charles commented.

The cable service change notification NPRM approved 5-0 includes several questions added to the draft, Starks said. He said they involved consumer harms that could come from providing notice to consumers after a blackout has already begun. That "runs the real risk of ... consumers paying for services that they haven’t received and depriving them of a real opportunity to mitigate any service disruptions," he said. Other questions included whether there are factors that affect a consumer’s ability to change providers in the event of a loss of programming, other ways to provide notice to consumers and whether such notices should be included in cable operators’ public files, he said. O’Rielly said the notification rules point to broader need for regulatory changes, given the existential threat MVPDs and broadcasters face from unregulated over-the-top services. He said the FCC's ramping up its efforts for revisions would free up traditional pay TV to move more quickly with the rest of the market.

O’Rielly would like the FCC to move quickly on CTIA and Wireless Infrastructure Association petitions seeking additional changes to wireless infrastructure rules designed to accelerate siting of towers and other 5G facilities (see 1910300027). “I’ve talked to the chairman about moving those expeditiously, I’m fully supportive,” O’Rielly said. Carr said the FCC is seeing significant increase in wireless buildouts as a result of earlier infrastructure decisions. “That’s something I would like to get across the finish line in 2020,” Carr said.

O’Rielly and Carr are hopeful the FCC will soon propose sharing the 6 GHz band with Wi-Fi and other unlicensed users. “The conversation” on the 6 GHz band “has matured extensively,” O’Rielly said. “I’m excited about where we’re about to land.” He predicted an item could come in Q1 . If we get rid of hyperbole and sensationalism “we can get to the right mitigation mechanisms and the protections needed from different types of unlicensed,” he said. “I think we’re just about ready to turn the corner.” Carr said he has had “some very productive meetings” with power companies using the band. The band is “part of a 5G ecosystem that we need to develop,” he said. “I see the opportunity here for a significant win. … There are still decisions to be made on that band.”