Summer Action Predicted on Proposed Enhanced Competition Incentive Program

Industry experts expect the FCC to act, probably this summer, on an enhanced competition incentive program (ECIP) now that reply comments are in docket 19-38. Several predicted the agency may wait for a third Democrat to be confirmed to the commission. Commissioners approved a Further NPRM 4-0 in November (see 2111180071) following up on a provision in the Mobile Now Act, which became law in 2018.

“It looks like the FCC has a green light to proceed with its ECIP proposal,” said lawyer Elizabeth Sachs of Lukas LaFuria, representing the Enterprise Wireless Alliance. “No one has argued that it is a bad idea,” she told us: “The issue is whether it goes far enough, about which, not surprisingly, there are very different opinions. EWA is encouraged that the record supports the need for more flexible buildout requirements, including for private enterprise systems.”

“The record is pretty much in favor of a tech-neutral approach and almost all of the docket seems fairly open to licensing reaggregation,” said Digital Progress Institute President Joel Thayer. “The extreme back and forth between shared and exclusive use will make things complicated for the commission to adopt anything soon. My instinct is that the chairwoman will wait for a full commission before moving forward on an order,” he said.

A lawyer who represents small carriers said an order is likely in about three months, possibly with an additional FNPRM to resolve some issues. “There may be some sticking points that will require a fifth commissioner to act fully,” the lawyer said: Staff still has “to digest and align the various positions on the nitty-gritty details, but overall those with spectrum and those without, agree that there is a path forward.”

“It is impossible to second guess what the FCC will do,” emailed David Smith, National Wireless Communications Council president: The group's position “comes from the need for flexibility. We would hope that whomever becomes the agency's fifth Commissioner will agree.”

Reply comments were posted this week in docket 19-38. Replies touched on many of the same themes as initial comments, including whether to impose use it or lose it rules (see 2203010062).

The Rural Wireless Association said the FCC should restrict ECIP to just small and tribal providers. “Small carriers have difficulty obtaining spectrum in rural areas,” RWA said: Large carriers don't need ECIP benefits “to obtain spectrum as they have the resources and desire to acquire the large license areas with rural pieces that ECIP is designed to free up.” The group said “use it or lose it is preferable to use it or share it because it both provides a stronger incentive to licensees to build out in a timely manner and provides greater certainty to entities desiring to utilize unused spectrum.”

“The record in this proceeding demonstrates broad support for the ECIP,” CTIA said: Reject calls to introduce “use or share” or concepts into the rules, the group said. Don’t tie the ECIP to adoption of open radio access network technologies, CTIA said: “Reject the proposal of satellite interests to condition new Upper Microwave Flexible Use Service licenses created under the ECIP on the licensee accepting the deployment of an expanded number of additional satellite earth stations in its service area.”

“Adopting ‘use or share’ frameworks would upend the Commission’s well-established exclusive-use licensing regime, which has proven tremendously successful in helping deliver high-quality mobile broadband services to the public, including 5G,” AT&T said. AT&T saw “broad support” for the commission’s proposal “to permit licensees to reaggregate previously partitioned and/or disaggregated licenses up to the original market and channel block size.”

The Utilities Technology Council supports the expansion of ECIP “to apply to rural-focused transactions with ‘any unaffiliated interested party that commits to serve a minimum amount of rural area'” including critical infrastructure companies and those operating private wireless systems in rural areas. “Electric, gas and water utilities need access to licensed spectrum that ensures appropriate levels of security and reliability for their critical infrastructure communications to support advanced capabilities, such as utility Internet of Things applications,” UTC said.

The Wireless ISP Association asked the FCC to expand ECIP to include WISPs and other non-common carriers. “Expanded eligibility would promote Congressional and Commission interest in digital equity and inclusion, while still excluding large carriers that do not need ECIP benefits,” the group said.

Expand eligibility to Part 90 business and industrial/land transportation channels below 470 MHz “that have been authorized for exclusive use,” the NWCC said: “There is no obvious reason why leasing is not permitted since exclusivity for this spectrum is determined based on FCC Rule Section 90.187, the same rule that governs exclusivity for Part 90 licenses in the 470-512 MHz band where leasing is authorized.”

UScellular urged quick FCC action. It “agrees entirely with CTIA that the FCC should adopt a technology neutral approach" to ECIP: "Such an approach would better promote participation in ECIP than would an approach which favored the use of a particular network architecture, such as Open RAN, as is supported by companies such as Mavenir.”