FCC Order Initially Excludes NY, Other States From 4.9 GHz Licensing

The FCC made major changes to its draft 4.9 GHz order after it was circulated by Chairman Ajit Pai, based on our comparison. Commissioners last week approved the order on a party-line vote (see 2009300050). It now includes a section blocking states that divert 911 funds from participating. The FCC will make the cut, initially, based on the 2019 fee diversion report. Nevada, New Jersey, New York, Rhode Island and West Virginia are initially ineligible. A comparison of the draft and final order and Further NPRM on 5G in 3.45-3.55 GHz also found changes.

Governors for the five implicated states didn’t comment Monday. Commissioner Mike O’Rielly accepted West Virginia earlier this year writing a law clarifying how money is used by establishing three separate funds, for 911, public safety wireless and cell towers (see 2003270042). Rhode Island got criticism after last year halving its 911 fee to 50 cents and restricting that amount for 911 purposes, while setting up a separate “first response surcharge” of 50 cents, with 90% going to the general fund and 10% to an IT investment fund (see 2001070025). Nevada was working with the FCC after the commission flagged at least one county as diverting revenue (see 2009230046). New York and New Jersey, by far the largest diverters, haven’t indicated any steps to stop the practice.

“As the history of this proceeding well demonstrates, access to spectrum is not the sole determinant of whether public safety entities can obtain necessary communications services,” the order said: 911 fee diversion also “has challenged public safety entities.” The order noted that it seeks comment in a broader notice of inquiry, also approved last week. The NOI seeks comment by Nov. 2, replies Dec. 2, in docket 20-291.

States wrongly listed can appeal. “A state that either believes it was incorrectly identified in the 2019 Fee Report as diverting fees, or that has taken subsequent remedial action, may petition” the Public Safety Bureau “to demonstrate, with supporting documentation, that relief is justified, and we direct the Bureau to expedite action on any such petition,” the order said.

The final version noted “APCO does not indicate that the 4.9 GHz band is heavily used nationwide; rather, applications include more localized use through fixed point-to-point and point-to-multipoint operations, and regulatory changes would be needed to ensure increased public safety usage.” The regulator said that “other public safety entities fail to demonstrate that the band is heavily used, while questioning the Commission’s methodology for asserting the 4.9 GHz band is underused and commenting that regulatory changes would be needed.”

The final version adds justification for the change, citing Wireless ISP Association comments. WISPA notes “the similarities of the 4.9 GHz band to the 5 GHz bands that are used by wireless Internet service providers" and supports "sharing between public safety and commercial users,” the order said. “Leasing is voluntary and allows state governments the flexibility to determine the appropriate use of this band in their respective jurisdictions,” said a new paragraph. A section on incumbent licensee rights clarified that “a State Lessor and its lessee(s) also must work with incumbents to prevent and resolve harmful interference.”

3.5 GHz

Our comparison of the draft and final 3.5 GHz items also found modifications. As signaled at last week’s commissioners’ meeting, the final 5-0 version asked additional questions about the use of sharing similar to that in the citizens broadband radio service band and protection for that band (see 2009300034).

“Are there advantages to adopting technical rules that are harmonized with the rules applicable to Priority Access Licenses in the adjacent 3.5 GHz” CBRS spectrum, the FCC queried now. It asked about power limits for base stations to protect CBRS. Could “asymmetrical” equivalent isotropically radiated power limits in the two bands “result in interference to Priority Access Licensees or General Authorized Access users in the lower 50 megahertz,” it asked.

The item now said the FCC will work with DOD to minimize cooperative planning areas where “federal operations will continue subsequent to the assignment of flexible use licenses in the band.” It asked about the need for a process for sharing “sensitive and classified information between federal and commercial operators,” perhaps similar to the AWS-3 process. The order wanted feedback if “there efforts federal users can undertake to optimize and encourage sharing?” The FCC clarified it wants to provide “immediate, full power, commercial access to 100 megahertz of contiguous spectrum between 3.45-3.55 GHz, to the maximum extent possible.”

Anyone “concerned about adjacent band operations should identify the types of systems that they operate and provide information on measures that can be taken to lessen any effects,” the FCC said. In a question about how filters could help, it now requested comment on their use by federal agencies, not just companies. The FCC also asked for comment on “the potential impact that relocating DoD operations out of the 3.45-3.55 GHz band might have on commercial access to other spectrum bands.”

The final order cited concerns raised by Raytheon. “Some licensees in the aerospace and defense industries have raised concern about their ability to continue to conduct experimental testing in this band,” it said: “We expect future users of the band to negotiate in good faith with applicants for experimental authorizations, consistent with the regulatory status afforded primary users versus experimental licenses under our rules.”

Revised language instructed Wireless Bureau and Office of Engineering and Technology staff “to continue to work with our federal partners, including NTIA and the DOD, to examine what steps may be necessary to allow commercial wireless service, licensed or unlicensed, to share use of the remainder of the 3.1-3.55 GHz band, and in particular to make available the 100 megahertz of spectrum between 3.35 GHz and 3.45 GHz for commercial use at the same power levels that we propose for the 3.45-3.55 GHz band throughout the contiguous United States.”

The FCC dismissed recent complaints from ARRL.