The next-generation of wireless technologies – known as 5G – is here.  Not only is it expected to offer network speeds that are up to 100 times faster than 4G LTE and reduce latency to nearly zero, it will allow networks to handle 100 times the number of connected devices, revolutionizing business and consumer connectivity and enabling the “Internet of Things.”  Leading policymakers – federal regulators and legislators – are making it a top priority to ensure that the wireless industry has the tools it needs to maintain U.S. leadership in commercial 5G deployments.  This blog provides monthly updates on FCC actions and Congressional efforts to win the race to 5G. 

Regulatory Actions and Initiatives 

COVID-19 Relief

• The FCC grants additional emergency authorizations so that first responders and others can continue wireless infrastructure projects during the pandemic.
  • The FCC granted requests for relief to FirstNet (see here, here, and here), Verizon (see here and here), and Union Pacific Railroad (see here and here) to resume standard historic preservation review under Section 106 of the National Historic Preservation Act for qualifying critical infrastructure (e.g., public safety and transportation) projects during COVID-19.

Low-Band Spectrum

• The FCC modifies the requirements for DISH’s licenses, giving it more time to deploy 5G services.
  • On September 11, 2020, the FCC’s Wireless Telecommunications Bureau (“Wireless Bureau”) released an Order extending the license term and final buildout deadline for DISH’s AWS-4, Lower 700 E block, and H-block licenses to June 14, 2023.  The Bureau also waived the June 14, 2023 interim buildout deadline for DISH’s 600 MHz licenses and left the licenses’ June 14, 2029 license term unchanged.  The Bureau clarified that the extension and waiver grants are conditioned on DISH meeting the conditions, commitments, and constrictions that the Commission adopted or proposed in the Order approving the T-Mobile/Sprint transaction, including the requirement to provide 5G broadband service over the licenses.

Mid-Band Spectrum

• The FCC announces its anticipated spectrum auctions in the next year.
  • On September 28, 2020, the FCC’s Office of Economics and Analytics released a Public Notice estimating the auctions that the FCC will commence by September 30, 2021.  It includes auctions for spectrum in the 3.7-4.2 GHz (“C-band”), 2496-2690 MHz (“2.5 GHz band”), 3.45-3.55 GHz band, and 470-512 MHz (“T-band”) (see below) as well as an FM broadcast auction.  Except for the C-band auction, which is scheduled to begin December 8, 2020, the Public Notice does not provide specific dates for the auctions listed.
     
• The FCC receives robust response from Tribal entities seeking access to mid-band spectrum in the 2.5 GHz band.
  • On September 3, 2020, the FCC announced the closing of its first-ever spectrum priority filing window for rural Tribes seeking access to spectrum in the 2.5 GHz band.  Subsequently, on September 15, 2020, the FCC’s Wireless Bureau announced that of the more than 400 applications it received, it found 157 applications, in its first round of review, to be acceptable for filing.  Petitions to deny those applications are due October 15, oppositions are due October 26, and replies are due November 2.  Additional applications that the Wireless Bureau finds acceptable for filing will be announced in future public notices.
     
• The FCC makes available an additional 100 megahertz of mid-band spectrum in the 3.45-3.55 GHz band for commercial 5G services.
  • On September 30, 2020, the FCC adopted an Order and Further Notice to make available mid-band spectrum between 3450-3550 MHz for commercial services.  The Order makes the spectrum available by relocating and/or sunsetting most incumbent operations.  It also directs the FCC’s Wireless Bureau and Office of Engineering and Technology to work with NTIA and the Department of Defense to examine shared use (on both a licensed and unlicensed basis) of the spectrum directly below the band, between 3.35 GHz and 3.45 GHz, for commercial operations.  The Further Notice proposes to implement a coordination regime between future commercial users and federal incumbents that will remain in the band.  It also proposes licensing and technical rules consistent with other commercial mobile services.  Comments and replies on the Further Notice are due 30 and 45 days, respectively, after Federal Register publication. 
  • NTIA has strongly encouraged the FCC to permit commercial operations in the 3450-3550 MHz band on a shared basis with incumbent federal users and noted that it will work with the Department of Defense, the primary user of the band, to minimize impacts from federal operations on future commercial operations.
     
• The FCC takes further action on the 3.5 GHz band to make it available for commercial services. 
  • On September 15, 2020, the Wireless Bureau and the Office of Engineering and Technology released a Public Notice approving the updated Environmental Sensing Capability sensor deployment and coverage plans of CommScope, Google, and Key Bridge Wireless LLC.  The updated plans indicate that the parties have satisfied the sensor coverage requirements for certain additional dynamic protection areas, providing further clarity to commercial operators where they may operate.
     
• The FCC continues to move to clear and auction spectrum in the C-band for 5G services, and one challenge to the FCC’s decisions at the D.C. Circuit concludes.
  • On September 29, 2020, the Wireless Bureau opened a limited window for eligible space station operators to amend their final C-band Transition Plans to remove the earth stations for which earth station operators elected to receive lump sum payments and, therefore, assumed the responsibility of transitioning out of the 3.7-.3.98 GHz portion of the band.  The window closes on October 28, 2020.
  • The Wireless Bureau released an Order on September 25, 2020 approving the eligible space station operators’ selection of RSM US LLP as the C-band Relocation Coordinator.  The Bureau has not yet approved the selection of CohnReznick as the Relocation Payment Clearinghouse.
  • On September 16, 2020, the International and Wireless Bureaus announced guidance for incumbent C-band earth station operators seeking to amend their registrations to include additional collocated antennas.  Earth station operators were required to submit waiver requests to amend their registrations by September 25, 2020.
  • On September 14, 2020, the D.C. Circuit denied ACA Connects’ petition for writ of mandamus to stay the deadline for the incumbent earth station operators’ lump sum election.  The court was not persuaded by ACA Connects’ arguments that the Wireless Bureau was required to consider costs for purchasing decoders when determining the lump sum amount and that the Wireless Bureau’s process for determining the lump sum amount was arbitrary and capricious.  In addition, the court stated that ACA Connects failed to demonstrate actual and imminent harm and that the harm could not be remediated if ACA Connects prevailed on its challenge of the C-band Order.
     
• The FCC seeks to expand commercial use of 50 megahertz of mid-band spectrum primarily used by public safety. 
  • On September 30, 2020, the FCC adopted a Sixth Order and Seventh Further Notice that permits the selection of a state-endorsed entity to lease some or all of the spectrum in the 4940-4990 MHz (“4.9 GHz”) band, principally used by public safety, to commercial entities for non-public safety operations.  The Order would limit leasing to states that do not divert 911 fees, and the Further Notice would seek comment on how to address 911-fee-diverting states.  The Further Notice also proposes new licensing rules for the band, including grandfathering the band’s current public safety licensees, and seeks comment on ways to implement the leasing framework, including using dynamic spectrum sharing techniques.  Comments and replies on the Further Notice are due 30 and 45 days, respectively, after Federal Register publication.   
  • Prior to the Order and FNPRM’s release, the FCC implemented a temporary filing freeze on the acceptance and processing of applications pertaining to services in the 4.9 GHz band to stabilize the spectrum environment as it considers the changes above. 
     
• NTIA requests that the FCC implement coordination zones in the 5.9 GHz band that could limit its use for unlicensed services like Wi-Fi. 
  • On September 8, 2020, NTIA sent a letter urging the FCC to adopt rules to add exclusion zones in 5.9 GHz band, which is currently being considered by the FCC for unlicensed use, such as Wi-Fi, as well as automotive applications.  NTIA noted that exclusion zones would protect federal radiolocation operations in the band from interference from cellular vehicle-to-everything and unlicensed operations and requested that it be allowed to authorize additional or modify exclusion zones.     
     
• The Department of Defense requests public input on how its spectrum may be shared to support the deployment of 5G services.
  • On September 18, 2020, the Department of Defense released a Request for Information on innovative solutions and alternative approaches to enable dynamic spectrum sharing within the Department’s currently allocated spectrum in order to accelerate 5G deployment.  It notes that the Department has made available the 3450-3550 MHz spectrum band for 5G (see above), but asks whether there are new technologies or innovative methods regarding how additional mid-band spectrum currently allocated to the Department can be made available faster for 5G.  Comments are due by October 19, 2020.  

In the Courts

• Several coalitions of local governments and local government associations have filed appeals of the FCC’s June 10, 2020 Declaratory Ruling addressing wireless tower and base station modifications under Section 6409(a) of the Spectrum Act. 
  • The first appeal, led by the League of California Cities, was filed in the U.S. Court of Appeals for the Ninth Circuit in June.  
  • In August, two additional appeals were filed in the U.S. Court of Appeals for the D.C. Circuit, one led by the City of Boston and the other by the City of Seattle.  
  • On September 8, 2020, the D.C. Circuit cases were transferred to the Ninth Circuit.  It is anticipated that the City of Seattle and City of Boston cases will ultimately be consolidated with the initial appeal filed by the League of California Cities, and a unified briefing schedule will be adopted for the consolidated cases.
  • Wireless industry associations, WIA and CTIA, have intervened in the League of California Cities case and have moved to intervene in the City of Boston and City of Seattle cases in support of the FCC.
     
• On September 28, 2020, the local government and utility industry parties filed petitions seeking rehearing or rehearing en banc of the Ninth Circuit’s August 12, 2020 City of Portland v. U.S. decision that had largely affirmed the FCC’s 2018 Declaratory Rulings addressing the deployment of wireless facilities. 
  • The standard for obtaining rehearing or rehearing en banc is high, with the Federal Rules of Appellate Procedure providing that rehearing en banc “is not favored and ordinarily will not be ordered.”
  • The filing of the petitions for rehearing do not stay the effectiveness of the Ninth Circuit’s decision or the FCC’s orders.
     
• In Up State Towers, Co. v. Town of Kiantone, 2020 US App. Lexis 28934 (2d Cir. Sept. 10, 2020), the U.S. Court of Appeals for the Second Circuit affirmed the district court’s grant of summary judgment to Up State Towers, holding that the Town of Kiantone’s denial of Up State’s tower application (originally filed in 2015) was not supported by substantial evidence in the record, as required by 47 U.S.C. § 332(c)(7)(B)(iii).
  • Up State Towers was represented by Mintz’s Scott Thompson.
     
• On September 17, 2020, the U.S. District Court for the Northern District of California ruled that the FCC’s rules and authority over RF safety preempt local attempts to require additional RF safety warnings.  The court struck down a Berkeley California ordinance that the FCC said required wireless providers to “overwarn” the public and undermined the FCC’s policy judgment with respect to disseminating information about RF safety standards. 

Legislative Efforts

• The House passed a bill repealing the requirement that the FCC reallocate certain public safety spectrum for commercial services.
  • On September 23, 2020, the House passed the Don’t Break Up the T-Band Act of 2020, as amended.  The bill repeals the statutory requirement that the FCC reallocate and auction the T-band, currently used by public safety entities, for commercial service by 2021.  The bill is now in committee in the Senate.
     
• A bill was introduced in the House that would require NTIA to estimate the value of spectrum allocated for federal use.
  • On September 14, 2020, Representative McMorris Rodgers introduced the Government Spectrum Valuation Act of 2020.  If enacted, the bill would require NTIA to estimate the economic value of spectrum between 225 MHz and 95 GHz that is allocated to federal entities.  A similar bill was introduced in the Senate last year.  The Senate bill was advanced out of committee on September 16, 2020. 
• On September 29, 2020, South Carolina became the 30th state to enact a small cell law providing for modernized and streamlined rules for the deployment of small cell facilities in jurisdictions throughout the State.  Like other small cell bills, this new law provides for consistent and predictable standards that will allow wireless providers and wireless infrastructure developers to deploy 5G capable facilities in the rights of way.