The next-generation of wireless technologies – known as 5G – is expected to revolutionize business and consumer connectivity, offering network speeds that are up to 100 times faster than 4G LTE, reducing latency to nearly zero, and allowing networks to handle 100 times the number of connected devices, 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

Spectrum

• Bidding in the latest auction of mid-band spectrum for 5G services closes with over $427 million in net proceeds.

  • On August 29, 2022, bidding in Auction 108 – the auction for spectrum in the 2.5 GHz band – concluded, with 63 bidders winning 7,872 of the 8,017 licenses offered.  T-Mobile, in particular, won 7,156 licenses.  The auction grossed $427.8 million in net proceeds.

• The FCC takes additional action to support commercial deployment of mid-band spectrum in the 3.5 GHz band.

  • On August 4, 2022, the FCC’s Wireless Telecommunications Bureau (“WTB”) and Office of Engineering and Technology (“OET”) released a Public Notice approving the Environmental Sensing Capability (“ESC”) sensor deployment and coverage plans of Federated Wireless, permitting it to operate its ESC sensors and assist providers seeking to offer service in Guam while protecting federal incumbents.  Federated Wireless must operate in conjunction with at least one Spectrum Access System (“SAS”) that has been approved for commercial deployment and provide the FCC with a notification that affirms that its sensors are constructed and operational before it may provide commercial services. 

  • In addition, the WTB and OET released a Public Notice announcing that Sony has been certified to operate as a SAS administrator in the 3.5 GHz band in American Samoa.  Among other things, Sony has agreed to use the scheduling portal established by the National Telecommunications and Information Administration (“NTIA”) and Department of Defense – instead of an ESC – to protect federal operations in and around American Samoa.

• The FCC receives its first appeal regarding reimbursable costs for clearing the C-band for commercial 5G services.

  • On August 10, 2022, the WTB released a Public Notice announcing and establishing the pleading cycle for an appeal filed by Mongoose Works, Ltd. (“Mongoose Works”) of the C-band Relocation Payment Clearinghouse’s (“Clearinghouse”) decision regarding the classification of Mongoose Works’ earth station antennas for the purpose of obtaining a lump sum payment for clearing the spectrum.  This is the first time that the Clearinghouse Appeal Procedures have been used.  The Clearinghouse had 10 days – by August 22, 2022 – to respond to the appeal and submit any decisional paperwork or materials that support its decision.  Mongoose Works had five days – until August 29, 2022 – to submit its reply. 

5G Networks and Infrastructure

• The FCC seeks input on a request for waiver by Ericsson to permit the use of mobile devices that utilize multiple spectrum bands.

  • On August 8, 2022, the WTB and OET released a Public Notice seeking comment on a request for waiver submitted by Ericsson in March 2022.  The waiver request seeks FCC permission to manufacture multiband radios covering the 3.45 GHz and C-bands in the carrier aggregation mode.  Noting that “[t]he Race to 5G is on,” Ericsson’s waiver request explains that “[w]ith this radio, wireless providers that hold licenses in both bands will be able to deploy in these two bands in a cost- and energy-efficient manner.”  Comments were due August 23, and reply comments are due September 2, 2022.

Other Federal Activities

• NTIA announces that its fifth annual Spectrum Policy Symposium will be held on September 19, 2022.

  • On August 23, 2022, NTIA announced that it will host a symposium on September 19, 2022 at the National Press Club in Washington, D.C.  The symposium will “focus[] on continued innovation in the use of radio-frequency spectrum, the evolution of new techniques and technologies to manage its use domestically and internationally, and principles for the development and execution of a national spectrum strategy.” 

  • NTIA released the agenda for the symposium on August 29, 2022.  Among other things, the agenda notes that “[k]ey government officials from the White House, Congress, FCC, and federal agencies will participate and discuss spectrum management coordination and national spectrum policies and how they support 5G network deployments, next-generation cellular and WiFi systems, and closing the Digital Divide.” 

• NTIA announces Stage Two winners of its 5G Challenge.

  • On August 11, 2022, NTIA announced the Stage Two winners of its 5G Challenge, each of which will receive a $150,000 “Emulated Integration” prize and is qualified to be selected for a “Best of Software Bill of Materials” prize of $200,000 (which will be announced along with final 5G Challenge winners later this fall).  In addition, NTIA announced the Stage Three contestants, each of which has an opportunity to win a $250,000 “Network Integration” prize.

• NTIA authorizes additional studies of 5G networks.

  • On August 11, 2022, NTIA announced that its research laboratory – the Institute for Telecommunication Sciences (“ITS”) – is engaging in specialized engineering studies known as “electromagnetic compatibility studies” to assess the ability of wireless telecommunications systems, in particular emerging wireless technologies such as 5G, to function acceptably in their electromagnetic environment.  It also notes that an ITS staff member chaired a session entitled “Critical Challenges and Solutions in Spectrum Engineering,” which was focused on “developing well-informed and accurate electromagnetic compatibility models to [e]nsure optimal and trouble-free use of the radio spectrum.” 

• The FCC and NTIA refresh their spectrum coordination activities.

  • On August 2, 2022, the FCC and NTIA announced that they have – for the first time in nearly 20 years – updated their Memorandum of Understanding (“MOU”) on spectrum coordination.  Among other things, the MOU requires each agency to provide notice of potential action that might affect the other and focuses on facilitating the exchange of evidence-based information, relevant technical data, and analyses based on sound engineering principles.  NTIA Assistant Secretary Davidson commented that “[a] spectrum coordination agreement that pre-dates the smartphone is not sufficient to meet the challenges facing our agencies today.”  Both agencies committed to revisit the MOU every four years to ensure that it is keeping pace with the Nation’s spectrum needs.

In the Courts

• The D.C. Circuit upholds the FCC’s decision to make 5.9 GHz band spectrum available for unlicensed uses such as Wi-Fi.

  • On August 12, 2022, the D.C. Circuit released an opinion upholding the FCC’s decision to reallocate the lower 45-megahertz (5850-5895 MHz) portion of the 5.9 GHz band (5.850-5.925 GHz) for unlicensed use.  

  • FCC Chairwoman Rosenworcel said she was “pleased” with the Court’s decision, which “recognizes that by allowing this spectrum to evolve we can advance newer safety technologies and grow our wireless economy.”  

  • Commission Carr commented that he was “very pleased that the DC Circuit has upheld the FCC’s 2020 decision to free up more mid-band spectrum for high-speed Wi-Fi and 5G in the 5.9 GHz band” and that the agency should “welcome today’s court decision as a call to return to freeing up spectrum at the pace and cadence we have been moving.” 

  • Commissioner Starks added that “[a]ccess to the 5.9 GHz band is already creating new opportunities for rural broadband, gigabit Wi-Fi for schools, libraries, and private enterprise, and faster, more reliable – and more affordable – performance for everyday internet users at home.”

• The District Court for the Western District of New York affirms that city small cell and fiber fees are limited by Sections 253 and 332 of the Communications Act.

  • Three parallel cases brought by ExteNet, Crown Castle, and Verizon Wireless against the City of Rochester, NY challenge the City’s fees on small cells and fiber in the public rights of way.

    • The small cell fees are $1,500 per year per small cell, radically exceeding the FCC’s presumptively reasonable fee of $270; and

    • The fiber fees are $10,000 for 1-2,500 linear feet of facilities, $1.50 per linear foot for 2,500-12,500 feet of facilities, and $.75 per linear foot beyond 12,500 feet of facilities.

  • The Court issued orders containing several key legal determinations applying the FCC’s 2018 Declaratory Ruling and Third Report and Order (sometimes referred to as the “Small Cell Order”).

    • The Court rejected the City’s argument that Section 253 is unambiguous.

    • The Court confirmed that the FCC’s 2018 Declaratory Ruling applies to fees for both small wireless facilities and wireline facilities in the public rights of way. 

      • The Court recognized the FCC’s statutory interpretation was not limited to a particular technology, even if the order was driven by small cell issues.

    • The Court confirmed that it is the City’s burden to demonstrate that its fees are limited to its costs caused by regulating telecommunications facilities in the public rights of way. 

      • It stated that the FCC’s 2018 Declaratory Ruling “unequivocally” places the burden on the municipality.

    • Ultimately, the Court denied summary judgment to all parties, holding that there were questions of fact regarding the City’s purported right of way costs.

Legislative Efforts

• President Biden signs into law legislation that includes a spectrum tax carve-out.

  • On August 16, 2022, President Biden signed into law the Inflation Reduction Act, which includes a carve-out that permits companies to deduct the value of spectrum licenses from taxable income.  The carve-out applies only to spectrum licenses bought after December 31, 2007 and before August 16, 2022 – the date of enactment.

• President Biden signs into law legislation that invests over $52 billion to support U.S. semiconductor manufacturing capabilities, research and development, and workforce development.

  • On August 9, 2022, President Biden signed into law the CHIPS and Science Act, which among other things, appropriates $52.7 billion to support the U.S. semiconductor manufacturing ecosystem and workforce development initiatives.  It also appropriates $1.5 billion for the Public Wireless Supply Chain Innovation Fund to support the development of Open Radio Access Network technologies to help accelerate the deployment of 5G. 

• The Senate Subcommittee on Communications, Media, and Broadband holds a hearing to set future spectrum priorities.

  • On August 2, 2022, the Subcommittee on Communications, Media, and Broadband of the Senate Committee on Commerce, Science, and Transportation held a hearing entitled “Future of Spectrum.”  The purpose of the hearing was to “set future spectrum priorities and coordination goals” to promote efficient spectrum utilization.  During the hearing, subcommittee members and hearing witnesses discussed extension of the FCC’s auction authority, which is set to expire on September 30, 2022.  Senators Wicker and Thune and Meredith Attwell Baker, President and CEO of CTIA, noted support for a short, 18-month renewal of auction authority to allow time to draft legislation that would tie the authority to specific spectrum bands.  In contrast, Senator Lujan and Chris Lewis, President and CEO of Public Knowledge, expressed support for a longer-term extension, which would help encourage a sustainable spectrum landscape.