The wireless industry has revolutionized the way we connect, from facilitating teleworking, distance learning, and telemedicine to allowing the American public to interact virtually in almost all other aspects of their daily lives. Leading policymakers – federal regulators and legislators – are making it a top priority to ensure that the wireless industry has the tools and resources it needs to keep pace with this evolving landscape. This blog provides monthly updates on actions by federal regulatory bodies responsible for communications policy and Congressional efforts to support wireless connectivity. And this month we highlight the Ninth Circuit’s ruling on the FCC’s clarifications with respect to wireless infrastructure deployment.

In the Courts

The Ninth Circuit Acts on the FCC’s Wireless Infrastructure Declaratory Ruling. On September 13, 2024, the Ninth Circuit ruled on the FCC’s 5G Upgrade Order, affirming the FCC’s shot clock, separation measurement, and equipment cabinets clarifications. However, the court struck down the FCC’s clarification of the scope of concealment elements and siting approval conditions, finding that the clarifications were new legislative rules that were not consistent with the original rule and were not adopted through notice-and-comment rulemaking. Importantly, the court’s ruling does not eliminate the FCC’s rules concerning concealment elements and conditions of approval, but only reverses the FCC’s 2020 clarification. The court also affirmed the FCC’s clarification that there must be express evidence that at the time of the original approval, the local government required a particular feature and conditioned approval on its continued existence, rejecting the cities’ challenge that the express evidence requirement was impermissibly retroactive.

Mintz represented the Wireless Infrastructure Association as an intervenor in support of the FCC in the Ninth Circuit.

Regulatory Actions and Initiatives 

Spectrum

The FCC Grants Relief for 3.5 GHz Band Operations Because of Severe Weather. In the wake of Hurricanes Francine and Helene, the FCC’s Wireless Telecommunications Bureau (“WTB”) released several Orders granting various parties limited, conditional emergency waivers of the FCC’s rules that require Environmental Sensing Capabilities (“ESCs”) in Dynamic Protection Areas (“DPAs”) to detect and protect federal incumbent users in the 3.5 GHz band from harmful interference. 

• On September 10, 2024, the WTB released an Order granting Federated Wireless’s (“Federated’s”) request for waiver so that Federated may treat DPAs East 3 and East 22-24 as “inactive,” which will allow Federated to be relieved of its ESC detection obligations and provide uninterrupted service to thousands of Citizens Broadband Radio Service Devices (“CBSDs”) that provide critical broadband, voice, and data services.
• In addition, on September 25, 2024, the WTB released an Order granting Federated’s request for waiver to treat DPAs East 3, East 19, East 20, and East 21 as “inactive” for the duration of the waiver authority. 
• On September 13, 2024, the WTB released an Order granting Google LLC’s (“Google’s”) request for waiver so that Google may treat DPAs East 22-24, East 3, East 21, East 25, Pensacola, and Pascagoula as “inactive.” The Order will likewise allow Google to be relieved of its ESC detection obligations and provide uninterrupted service to thousands of CBSDs that provide critical broadband, voice, and data services.
• Finally, on September 26, 2024, the WTB released an Order granting Google’s request for a waiver to treat DPAs East 3, East 17, East 18, East 19, East 20, East 21, Pensacola, and Pascagoula as “inactive” for the duration of the waiver authority. 

Like prior waiver Orders, the WTB imposed certain conditions on Federated and Google, including stating that the waivers apply only to periods where the subject ESC sensors are unable to communicate with their Spectrum Access Systems due to a power outage or backhaul outage and that the ESC operator must immediately activate the subject DPAs upon notification from the FCC, National Telecommunications and Information Administration (“NTIA”), or Department of Defense (“DoD”). 

The FCC Announces No Auctions in Fiscal Year 2025. On September 30, 2024, the Office of Economics and Analytics (“OEA”) issued a Public Notice satisfying the Congressional requirement for publishing a list of auctions that it will conduct in the coming fiscal year. Because the FCC does not have auction authority, OEA projects that the FCC will conduct no auctions in the coming year. The Public Notice observes that the 2021 Infrastructure Investment and Jobs Act directed the DoD to study the Lower 3 GHz band, and the FCC has separate authority to auction any spectrum DoD identifies beginning no earlier than November 30, 2024. However, because DoD has not identified spectrum for commercial use and the Lower 3 GHz spectrum is also being studied pursuant to the National Spectrum Strategy, OEA states that it does not anticipate that Lower 3 GHz spectrum will be auctioned in the coming fiscal year. Finally, the Public Notice identifies spectrum that may be auctioned in the future, including the 12.7-13.25 GHz, AWS-3, and 600 MHz bands.

Comment Deadlines Established on the FCC’s 3.5 GHz Band Proceeding. The FCC’s Notice of Proposed Rulemaking proposing and seeking comment on certain changes to the Citizens Broadband Radio Service rules governing the 3.5 GHz band was published in the Federal Register on September 6, 2024, making comments and reply comments due October 7, 2024, and November 5, 2024, respectively. Subsequently, on September 27, 2024, the WTB released an Order granting a request filed by the Wireless Innovation Forum and others for an extension of the deadlines. Accordingly, comments and reply comments on the FCC’s proposals are now due November 6, 2024, and December 5, 2024, respectively.

Wireless Networks and Equipment

The FCC to Consider Requiring 100% Hearing Aid Compatibility of Wireless Handsets. On September 26, 2024, the FCC released a draft Report and Order that, if adopted at the FCC’s October open meeting, would, among other things, require all wireless handset models to be 100% hearing aid-compatible after certain transition periods. Once the applicable transition period ends, handset manufacturers and service providers would be prohibited from offering for sale or use non-hearing aid-compatible handset models. In addition, the Report and Order would revise the FCC’s rules regarding the information that must be included on service providers’ publicly accessible websites and records that must be retained related to the handset models that they offer. Finally, the Report and Order would continue to require service providers, including resellers, to certify compliance with the FCC’s hearing aid compatibility requirements after the relevant 100% hearing aid compatibility transition period ends.

The FCC Extends Time to File Applications for the Cybersecurity Labeling Administrator. On September 26, 2024, the FCC’s Public Safety and Homeland Security Bureau (“PSHSB”) released a Public Notice granting CTIA’s and TÜV Rheinland of North America, Inc.’s requests to extend the deadline to apply to be the Cybersecurity Labeling Administrator and/or Lead Administrator for the Voluntary Cybersecurity Labeling Program for IoT Products. The new deadline to file applications is October 11, 2024.

The FCC Announces Compliance Dates for Location-Based Routing for Wireless 911 Calls. The PSHSB released a Public Notice on September 26, 2024, announcing that nationwide Commercial Mobile Radio Service (“CMRS”) providers must comply with location-based routing requirements for wireless voice calls by November 13, 2024. Non-nationwide CMRS providers must comply with location-based routing requirements for wireless voice calls and all CMRS providers must comply with location-based routing requirements for real-time text (“RTT”) communications to 911 by May 13, 2026. Nationwide CMRS providers must make certifications regarding compliance for 911 voice calls by January 12, 2025, and, by July 12, 2026, non-nationwide CMRS providers must make certifications regarding compliance for 911 voice calls and all CMRS providers must make certifications regarding compliance for RTT communications to 911. The PSHSB also provided guidance for compliance with these requirements. 

The FCC Declines to Extend the Pleading Cycle on Handset Unlocking. The WTB released an Order on September 16, 2024, denying a request by the Competitive Carriers Association for an extension of time to file reply comments on the FCC’s Notice of Proposed Rulemaking seeking comment on whether the FCC should subject wireless services providers, including resellers, to certain handset unlocking requirements. Accordingly, as we previously reported, reply comments were due September 23, 2024. 

The FCC Grants Additional Relief to Rip-and-Replace Support Recipients. The FCC’s Wireline Competition Bureau (“WCB”) released a Public Notice on September 30, 2024, announcing that it has granted five requests for extension of support recipients’ rip-and-replace deadlines. The grant of these requests continues to be based on funding and supply chain issues.

The FCC Reminds Rip-and-Replace Support Recipients About Status Reports. The WCB also released a Public Notice on September 6, 2024, reminding parties receiving support from the Secure and Trusted Communications Networks Reimbursement Program that they must file their next status update by October 7, 2024. Status reports must be submitted in the FCC’s Supply Chain Reimbursement Program Online Portal. 

NTIA Holds Listening Session on the Public Wireless Supply Chain Innovation Fund. On September 26, 2024, NTIA held its second virtual listening session on the Public Wireless Supply Chain Innovation Fund. The purpose of the listening session was to discuss the current status and progress of the Fund as well as to solicit stakeholder input to help inform future funding opportunities.

Mobile Broadband Funding

Comment Deadlines on the FCC’s 5G Fund Further Notice are Announced. The FCC’s Second Further Notice of Proposed Rulemaking on the 5G Fund, which will distribute up to $9 billion in two phases to support the deployment of voice and 5G mobile broadband service to rural areas of the country, was published in the Federal Register on September 17, 2024, making comments and replies due October 17, 2024, and November 1, 2024, respectively. Among other things, the Second Further Notice of Proposed Rulemaking seeks comment on whether to require a winning bidder in the 5G Fund Phase I auction to demonstrate prior to being authorized to receive support that it has obtained the consent of the relevant Tribal government(s) for any necessary access to deploy network facilities and, if so, how to structure that consent. 

Legislative Efforts

The House Passes a Bill That Would Establish a 6G Task Force. On September 18, 2024, the House passed the Future Uses of Technology Upholding Reliable and Enhanced (“FUTURE”) Networks Act, which directs the FCC to establish a 6G Task Force that would include stakeholders from the communications industry, public interest organizations, and representatives from the Federal government, among others. The 6G Task Force would be responsible for reporting on 6G wireless technology, including the status of industry-led standards setting, the limitations of 6G, and how entities across all levels of government can leverage 6G. The bill is currently in the Senate.