Confluence of Circumstances Pushed FCC to Move on Long-Pending Ligado Request

It took White House proxy support and concerns about commercial spectrum being essentially claimed by federal agencies to break the years-old logjam of Ligado's proposed terrestrial use of L-band spectrum with FCC Chairman Ajit Pai's decision to circulate a draft approval order (see 2004160019), we were told Thursday. Swift action could be next, with multiple commissioners' offices expecting to vote on it this week. An array of primarily aerospace interests urged the FCC to close and dismiss the proceeding.

"It is time for the FCC to make a decision and bring this proceeding to a close,” Pai said Thursday. “We have compiled an extensive record, which confirms that it is in the public interest to grant Ligado’s application while imposing stringent conditions to prevent harmful interference." Agency officials told us the draft circulated Thursday morning. The company wants to use the terrestrial wireless network for things like 5G and IoT.

Some consider litigation likely. An FCC official told us no one would be surprised by a lawsuit challenging approval, given the vehement pushback there had been to the Ligado proposal. But a Ligado ally said it would be difficult to get an expert agency overruled on an engineering decision. Attorney General William Barr's statement in support of the draft order might also stifle an appeal because it could be a signal from the White House to the rest of government "to stand down on this one," said Patrick Hedger of the Competitive Enterprise Institute. DOD and numerous other agencies urged the FCC to reject the Ligado low-power terrestrial broadband plan (see 2004130030). NTIA, which helps coordinate government spectrum strategy beyond the FCC, declined to comment.

Senate Armed Services Committee Chairman Jim Inhofe, R-Okla.; ranking member Jack Reed, D-R.I.; and House Armed Services Committee ranking member Mac Thornberry, R-Texas, tried before Pai circulated the draft order to get President Donald Trump to intercede against Ligado’s application. They and other lawmakers are likely to continue to press the issue despite circulation of the draft, communications sector lobbyists said.

The order "disregards the serious concerns raised by various government agencies about the harmful impacts to GPS," said the Aerospace Industries Association. It urged commissioners to vote down the draft "and adequately protect the GPS network that underpins our nation’s military operations and the safety of our airspace.”

AIA, Delta, JetBlue, FedEx, Iridium, Lockheed Martin, Southwest and other aerospace interests and allies, including Iridium, National Air Carrier Association and Cargo Airline Association, said the tortured history of the proceeding and the record necessitates a clean slate and the dockets should be closed, with Ligado free to file new applications, in a docket 11-109 posting Thursday. Between Ligado's "failure to adequately address the harmful interference at the heart of its proposals and the convoluted and dated record for this proceeding," the FCC should terminate the applications, they said.

Barr and Pai

Hedger said the decision to circulate the draft OK seems to mirror agency efforts to reallocate part of the 5.9 GHz band, with the commission making closure of the digital divide a key priority "and ultimately these are things that should be low-hanging fruit. The only reason they're not is ... bureaucratic turf wars." He said bipartisan approval is likely.

Along with the pandemic putting a premium on higher capacity internet access, Barr's statement "gave the FCC enormous cover by calling explicitly for resolution of the Ligado issue, linking the band to the president’s goal of winning the so-called race to 5G against China and other countries," emailed Michael Calabrese, director of the Wireless Future Program at New America. He said Pai likely "has run out of patience with federal agency NIMBYism," Calabrese said, citing the agency moving on 5.9 GHz over Transportation Department objections and on the 24 GHz auction over NOAA objections. He expects 5-0 approval.

Pai may be motivated by avoiding what essentially would have been a transfer of spectrum from the commercial sector to the government, which is essentially what the agencies were seeking, said Technology Policy Institute President Emeritus Thomas Lenard. "This has been studied to death."

The draft order sets conditions. They include the lower base station power levels and 23 MHz guard band Ligado previously committed to, plus reporting its base station locations and technical operating parameters to potentially affected government and industry stakeholders before beginning operation, continuously monitoring the transmit power of its base station sites and a "kill switch" for rapid shutdown of operations, the FCC said. Approval is conditioned on Ligado coordinating with DOD and other government stakeholders and avoid operators near DOD bases, an official said. The draft order doesn't set up an exclusion zone, he said.

Pai said he "appreciate[d] the concerns" raised by some executive branch agencies. "The painstaking technical analysis done by our expert staff [indicates the] conditions," he said, "would permit Ligado to move forward without causing harmful interference." DOD didn't comment.

Industry, Hill React

Wireless Infrastructure Association President Jonathan Adelstein said, aside from the FCC's push to make midband spectrum available for commercial use, it now seems satisfied Ligado's plans can be done without causing harmful interference, and DOD and other opponents haven't made a convincing case otherwise.

The draft was cheered in wireless circles and among Ligado allies. It's “a long time coming, but it's the right [decision]," tweeted Benton Institute's Gigi Sohn. Citing “enormous” pressure from the DOD and others in the administration to deny the application, Sohn said, “Kudos to [Pai] for having the fortitude to move this forward.” Freeing up more spectrum, “especially mid-band spectrum, is vital to 5G deployment,” WIA said. “Ligado’s proposal offers an enormous opportunity for infrastructure investment, deployment, and connectivity for Americans across the country right when we need it most.” Public Knowledge said advocates have been pushing for several years for the license modification request approvals, and it hopes in the future "the FCC takes a similar approach to innovative uses of spectrum that benefit the public.” Backing came from the Free State Foundation, Competitive Carriers Association and others.

“Your intervention is necessary to prevent” the FCC from granting the application given DOD's fears about harmful interference to GPS, Inhofe, Reed and Thornberry wrote Trump Wednesday. “Ligado’s planned usage will likely harm military capabilities, particularly for the U.S. Space Force, and have major impact on the national economy,” they said. “This plan would cost taxpayers billions of dollars to replace current GPS equipment.”

The lawmakers “share the desire to make America a leader in 5G networks,” but Ligado’s plan “is not essential to winning the 5G competition with China.” The L-band spectrum at issue isn’t among the “prime bands” the Pentagon “is working hard to share with industry, and there is grave concern across your administration about the harmful impact of this specific plan” from other agencies, including the departments of Commerce, Energy, Homeland Security, Interior and Justice, FAA and NASA, the lawmakers said.

House Communications Subcommittee member Rep. Billy Long, R-Mo., praised Pai for backing Ligado and “for taking action to unlock vital L-Band spectrum that has been held hostage by bureaucratic slow-walking for far too long,” in a tweet. Other legislators and the House and Senate Commerce committees didn’t comment.