Expanding Flexible Use of the 3.7 to 4.2 GHz Band
Federal RegisterAug 29, 2018
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 2, 25 and 27
[GN Docket No. 18-122; GN Docket No. 17-183; RM-11791; RM-11778; FCC 18-91]
Expanding Flexible Use of the 3.7 to 4.2 GHz Band
AGENCY:
Federal Communications Commission.
ACTION:
Proposed rule.
SUMMARY:
In this document, the Federal Communications Commission (Commission or FCC) adopts a Notice of Proposed Rulemaking (NPRM) to pursue the joint goals of making 3.7-4.2 GHz band spectrum available for new wireless uses while balancing desired speed to the market, efficiency of use, and effectively accommodating incumbent Fixed Satellite Service (FSS) and Fixed Service (FS) operations in the band. The Commission seeks comment on various proposals for transitioning all or part of the band for flexible use, terrestrial mobile spectrum, with clearing for flexible use beginning at 3.7 GHz and moving higher up in the band as more spectrum is cleared. The Commission also seeks comment on potential changes to its rules to promote more efficient and intensive fixed use of the band on a shared basis starting in the top segment of the band and moving down the band.
DATES:
Comments are due on or before October 29, 2018; reply comments are due on or before November 27, 2018.
ADDRESSES:
You may submit comments, identified by GN Docket No. 18-122, by any of the following methods:
• Federal eRulemaking Portal:
http://www.regulations.gov.
Follow the instructions for submitting comments.
• Federal Communications Commission's website:
https://www.fcc.gov/ecfs/.
Follow the instructions for submitting comments.
•
People with Disabilities:
Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email:
FCC504@fcc.gov,
phone: 202-418-0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT:
Ariel Diamond of the Wireless Telecommunications Bureau, Broadband Division, at (202) 418-2803 or
ariel.diamond@fcc.gov,
Anna Gentry of the Wireless Telecommunication Bureau, Mobility Division, at 202-418-7769 or
anna.gentry@fcc.gov,
or Christopher Bair of the International Bureau, Satellite Division, at 202-418-0945 or
chistopher.bair@fcc.gov.
For information regarding the Paperwork Reduction Act of 1995, contact Cathy Williams, Office of Managing Director, at (202) 418-2918 or
cathy.williams@fcc.gov.
SUPPLEMENTARY INFORMATION:
This is a summary of the NPRM portion of the Commission's
Order and NPRM,
GN Docket No. 18-122, FCC 18-91, adopted on July 12, 2018 and released on July 13, 2018. The complete text of this document, as well as comments, reply comments, and ex parte submissions, is available for public inspection and copying from 8 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The complete text is available on the Commission's website at
http://wireless.fcc.gov,
or by using the search function on the ECFS web page at
http://www.fcc.gov/cgb/ecfs/.
Alternative formats are available to persons with disabilities by sending an email to
fcc504@fcc.gov
or by calling the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (tty).
Comment Filing Procedures:
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
•
Electronic Filers:
Comments may be filed electronically using the internet by accessing the ECFS:
https://www.fcc.gov/ecfs/filings.
Filers should follow the instructions provided on the website for submitting comments. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket number, GN Docket No. 18-122.
•
Paper Filers:
Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Dr., Annapolis Junction, Annapolis MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.
People with Disabilities:
To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to
fcc504@fcc.gov
or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 888-835-5322 (tty).
Ex Parte Rules—Permit-But-Disclose
Pursuant to § 1.1200(a) of the Commission's rules, this
Order and NPRM
shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
ex parte
rules. Persons making
ex parte
presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral
ex parte
presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the
ex parte
presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments
can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during
ex parte
meetings are deemed to be written
ex parte
presentations and must be filed consistent with § 1.1206(b). In proceedings governed by § 1.49(f) or for which the Commission has made available a method of electronic filing, written
ex parte
presentations and memoranda summarizing oral
ex parte
presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (
e.g.,
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's
ex parte
rules.
Initial Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present IRFA of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the attached FNPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines specified in the FNPRM for comments. The Commission will send a copy of this FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).
Paperwork Reduction Act
The
NPRM
may result in new or revised information collection requirements. If the Commission adopts any new or revised information collection requirements, the Commission will publish a notice in the
Federal Register
inviting the public to comment on such requirements, as required by the Paperwork Reduction Act of 1995. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
see
44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.
Synopsis
I. Introduction
1. In this proceeding, the Commission is pursuing the joint goals of making spectrum available for new wireless uses while balancing desired speed to the market, efficiency of use, and effectively accommodating incumbent Fixed Satellite Service (FSS) and Fixed Service (FS) operations in the band. To gain a clearer understanding of the operations of current users in the band, the Commission collects information on current FSS uses. The Commission then seeks comment on various proposals for transitioning all or part of the band for flexible use, terrestrial mobile spectrum, with clearing for flexible use beginning at 3.7 GHz and moving higher up in the band as more spectrum is cleared. The Commission also seeks comment on potential changes to the Commission's rules to promote more efficient and intensive fixed use of the band on a shared basis starting in the top segment of the band and moving down the band. To add a mobile, except aeronautical mobile, allocation and to develop rules that would enable the band to be transitioned for more intensive fixed and flexible uses, the Commission encourages commenters to discuss and quantify the costs and benefits associated with any proposed approach along with other helpful technical or procedural details.
II. Background
A. 5G Leadership and Closing the Digital Divide
2. America's appetite for wireless broadband service is surging. And while mobile traffic is surging in sections of the United States, many communities still lack access to meaningful broadband connectivity. More intensive use of spectrum can allow wireless operators to fill in gaps in the current broadband landscape. Additional spectrum must be identified, however, if the Commission is to seize the 5G future and meet the connectivity needs of all Americans.
3. Enabling next generation wireless networks and closing the digital divide will require efficient utilization of the low-, mid-, and high-bands. In recent years, the Commission has taken several steps to use low-band spectrum below 3.7 GHz more efficiently and intensely, and it has paved the way for new opportunities in high-band spectrum above 24 GHz. Having identified additional spectrum in low- and high-bands, the Commission now seeks to identify mid-band spectrum for wireless broadband services. Mid-band spectrum is well-suited for next generation wireless broadband services due to the combination of favorable propagation characteristics (compared to high bands) and the opportunity for additional channel re-use (as compared to low bands).
4. Congress recently addressed the pressing need for additional spectrum for wireless broadband, including both mobile and fixed services, in the FY 2018 omnibus spending bill, which includes the MOBILE NOW Act under Title VI of RAY BAUM'S Act. The MOBILE NOW Act directs that spectrum be made available for new technologies and to maintain America's leadership in the future of communications technology. Section 603(a)(1) of the MOBILE NOW Act requires that no later than December 31, 2022, the Secretary of Commerce, working through the National Telecommunications and Information Administration (NTIA), and the Commission “shall identify a total of at least 255 megahertz of Federal and non-Federal spectrum for mobile and fixed wireless broadband use.” In making 255 megahertz available, 100 megahertz below 8000 MHz shall be identified for unlicensed use, 100 megahertz below 6000 MHz shall be identified for use on exclusive, licensed basis for commercial mobile use, pursuant to the Commission's authority to implement such licensing in a flexible manner, and 55 megahertz below 8000 MHz shall be identified for licensed, unlicensed, or a combination of uses.
5. Additionally, § 605(b) of the MOBILE NOW Act specifically requires the Commission to evaluate “the feasibility of allowing commercial wireless services, licensed or unlicensed, to use or share use of the frequencies between 3700 megahertz and 4200 megahertz,” which the Commission sought comment on in May 1, 2018 Public Notice. The Commission notes that there is no federal allocation for the 3.7-4.2 GHz band. The Commission intends to consult with NTIA and the heads of each affected Federal agency, as required by the Act, regarding the Federal entities, stations, and operations in the band, and the required issues and assessments for the report under § 605(b). This
NPRM,
in conjunction with the report under § 605(b), furthers the Commission's evaluation of mid-band spectrum to meet § 603's statutory mandate as well as to accommodate projected future demand.
B. 2017 Mid-Band Notice of Inquiry
6. In the 2017
Mid-Band NOI,
the Commission began an evaluation of whether spectrum in-between 3.7 GHz and 24 GHz can be made available for flexible use—particularly for wireless broadband services. The
Mid-Band NOI
sought comment in particular on three mid-range bands that have garnered interest from stakeholders for expanded flexible use (3.7-4.2 GHz, 5.925-6.425 GHz, and 6.425-7.125 GHz), and it asked commenters to identify other mid-
range frequencies that may be suitable for expanded flexible use. In the interest of clarity and expeditiously making spectrum available for wireless broadband use, this
NPRM
will evaluate the 3.7-4.2 GHz band individually, and the Commission may address other mid-band spectrum bands, including the 5.925-6.425 and 6.425-7.125 GHz bands, in subsequent item(s).
III. Notice of Proposed Rulemaking
A. The Future of Incumbent Usage of 3.7-4.2 GHz
1. Protecting Incumbent Earth Stations
7. The Commission proposes to protect incumbent earth stations from harmful interference as the Commission increases the intensity of terrestrial use in the band. The Commission seeks comment on how to define the appropriate class of incumbents for protection. For FSS earth station licensees and registrants, the Commission proposes to define incumbent stations as earth stations that: (1) Were operational as of April 19, 2018; (2) are licensed or registered (or had a pending application for license or registration) in the IBFS database as of October 17, 2018; and (3) have timely certified the accuracy of information on file with the Commission to the extent required by the
Order.
Although earth stations that have not filed an exhibit demonstrating coordination with terrestrial FS stations are unprotected from interference by FS links, that requirement is of less relevance today given the minimal FS usage in the band, as well as the fact that the Commission proposes new terrestrial uses for which coordination with existing FS users will have little value. Accordingly, the Commission proposes to protect even such earth stations so long as they meet the criteria described above.
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1
The Commission notes that the International Bureau waived the coordination requirement for the duration of the freeze for applications filed during the filing window (April 19, 2018 to October 17, 2018).
Freeze and 90-Day Earth Station Filing Window Public Notice
at 3-4.
8. The Commission proposes to exclude from the definition of incumbents any earth stations that are not licensed or registered in IBFS, or that are licensed or registered in IBFS, but for which the licensee/registrant does not timely file the certification required in the
Order.
The Commission further proposes that unregistered FSS earth stations could continue to receive transmissions lawfully, but would operate on an unprotected basis as to any licensed operations in the band. The Commission also seeks comment on whether incumbents that are small entities face any special or unique issues with respect to the transition such that they should be defined differently or have different obligations.
9. The Commission asks that commenters be specific in defining a protected incumbent and in explaining the relative obligations and/or rights that protected incumbents may have under each approach for more intense terrestrial use of the band. Which categories of incumbents must new flexible use licensees relocate under each approach, what would be the standard for determining the need to relocate each category of incumbents, and what are the terms or rules pursuant to which these relocations will occur? The Commission seeks comment on specific relief that should be provided to each class of incumbents. For example, should incumbent earth station operators be provided with filters to block transmissions from flexible use operations, should they receive filters and the technical assistance necessary to install them or repoint earth station antennas as necessary, or should earth station operators be provided with a lump sum to be used at their own discretion, either to upgrade existing facilities or to enable the switch to other means of transmission? Who would be responsible for reimbursing incumbent earth station operators and C-band customers for costs incurred in any transition, and how would such cost reimbursement be accomplished? How would disputes relating to cost reimbursement be resolved? What would be the basis for establishing reasonable cost reimbursements? For example, would it take into account any required improvements or replacement to an existing antenna or its supporting structure? Would it cover any required technological assistance? How should satellite news gathering vehicles or other temporary-fixed earth stations be addressed?
a. Limiting New Earth Stations
10. On April 19, 2018, the staff released the
Freeze and 90-Day Earth Station Filing Window Public Notice,
which froze applications for new or modified earth stations in the 3.7-4.2 GHz band to preserve the current landscape of authorized operations pending action as part of the Commission's ongoing inquiry into the possibility of permitting mobile broadband use and more intensive fixed use of the band through this proceeding. The Commission now seeks comment on revising the Part 25 rules to permanently limit eligibility to file applications for earth station licenses or registrations to incumbent earth stations. This would mean that earth station operators that register or license their existing stations by October 17, 2018, would be able to modify these stations at the registered location but not add new stations in new locations, and applications for new earth station registrations would not be allowed. Limiting new earth stations in this manner would provide a stable spectral environment for more intensive terrestrial use.
b. Removing Uncertified Earth Stations
11. In response to the
Mid-band NOI,
the Commission received comments from a variety of stakeholders, many of which addressed whether the Commission's IBFS data about current operations in the band is complete and up to date. Some commenters stressed the importance of identifying existing unregistered earth stations before the Commission makes any substantial changes to the operations permitted in the band, while other commenters contend that there may be earth stations in the database that are no longer in operation.
2
2
Registrants are required to notify the Commission when a receive-only earth station is no longer operational or when it has not been used to provide any service during any 6-month period. 47 CFR 25.131(i).
12. Regarding the first concern, in the
Freeze and 90-Day Earth Station Filing Window Public Notice,
the International Bureau announced as an exception to the freeze, a 90-day window for earth stations to register in IBFS. Also, to obtain the best information possible on existing earth stations in this band in furtherance of the Commission's ongoing inquiry without imposing a potentially unnecessary economic burden on eligible FSS earth station applicants in the 3.7-4.2 GHz band filing within the 90-day window, the International Bureau granted a temporary waiver of the frequency coordination requirement. Subsequently, the International Bureau extended the filing window by 90 days until October 17, 2018, waived additional provisions of the rules, clarified that multiple antennas located at the same address or geographic location may be filed under a single registration application and pay a single filing fee, and announced the availability of an additional option to facilitate the registration of large numbers of geographically diverse earth stations under a single “network” license and single fee.
13. Regarding the second concern, the staff noted that “after the 90-day window closes, the Commission may determine to require all licensees,
registrants, and operators with pending applications for license or registration of FSS earth stations in the 3.7-4.2 GHz band to file a certification that the earth station was operational as of the start of the freeze and remains operational at the time of the certification along with additional technical details regarding their operations to inform the Commission's resolution of issues raised in the inquiry.”
3
In the
Order,
the Commission requires operators of earth stations licensed or registered in IBFS (except those that file new or modified registrations between April 19, 2018, and October 17, 2018, under the modified registration process outlined in the
Freeze and 90-Day Earth Station Filing Window Public Notice
) to file certifications as to the accuracy of all information in IBFS concerning their existing FSS earth station operations.
4
3
Freeze and 90-Day Earth Station Filing Window Public Notice
at 5. The staff also advised all potential applicants that “the Commission may, for purposes of further action following the
NOI,
choose to take into consideration only those earth stations that are licensed, registered, or have pending applications for license or registration on file in IBFS as of [the close of the filing window].”
Id at
5.
4
Above, the Commission proposes to limit the definition of incumbent earth stations to licensed or registered stations for which the operator timely files the required certification, or for which the operators timely filed for new or modified registrations between April 19, 2018 and October 17, 2018 pursuant to the
Earth Station Filing Window Public Notices.
14. To ensure that the Commission has the best information possible on existing earth stations in this band, the Commission proposes to update IBFS to remove 3.7-4.2 GHz band earth station licenses or registrations for which the licensee or registrant does not file the certifications required in the
Order
(to the extent they were licensed or registered before April 19, 2018). The Commission specifically proposes that an earth station registered in IBFS be automatically terminated unless the registrant timely files the certification required by the
Order
(to the extent they were licensed or registered before April 19, 2018). The Commission seeks comment on this proposal.
c. Maintenance of IBFS Data Accuracy
15. The Commission seeks comment on how—once the accuracy of 3.7-4.2 GHz band earth station data has improved—to ensure that earth station data remains accurate to facilitate frequency coordination and maximize efficient use of the spectrum. How often do the frequencies received by a given earth station change? The Commission seeks comment on whether, for a constructed and operational earth station,
5
any combination of frequency, azimuth, and elevation listed in the license or registration that is unused for more than,
e.g.,
180 days, should be deleted from the license or registration to minimize unnecessary constraints on successful frequency coordination of new operations.
5
The Commission notes that under Part 25, a station authorization shall be automatically terminated in whole or in part without further notice to the licensee upon the removal or modification of the facilities which renders the station not operational for more than 90 days, unless specific authority is requested.
Id.
§ 25.161(c).
16. In addition, the Commission asks for parties to comment on whether to require an earth station licensee or registrant in the 3.7-4.2 GHz band to certify periodically,
e.g.,
annually, the continued accuracy of the information on file with the Commission. Should any requirements that the Commission adopts to help ensure that IBFS data remains accurate become effective after a transition period?
d. Revising the Coordination Policy
17. Receive-only earth stations cannot cause interference, but under the Commission's current rules they can be coordinated and licensed or registered with the Commission to protect them from terrestrial microwave stations in bands shared co-equally with the FS. Section 25.203 requires FSS applicants to coordinate their proposed frequency use prior to filing their license applications with the Commission. Earth station applicants, to the extent practicable, must select sites and frequencies in areas where the surrounding terrain and existing frequency use will minimize the possibility of harmful interference between the sharing services. An earth station applicant, prior to filing an application to register or license with the Commission, must coordinate its proposed frequency usage with existing terrestrial users and with applicants that have filed for terrestrial station authorizations. The purpose of this coordination requirement is to establish the baseline level of interference that an earth station must accept in frequency bands shared by the FS and FSS on a co-primary basis. The coordination results entitle the FSS earth station to the interference protection levels agreed to during coordination, including against subsequent FS licensees. Currently, registered or licensed earth stations in the C-band are generally coordinated and authorized to use the entire band across the full geostationary arc, a policy known as full-band, full-arc.
18. A reexamination of the full-band, full-arc coordination policy is appropriate in light of the Commission's goal to maximize spectrum efficiency and use in the 3.7-4.2 GHz band including more intensive terrestrial use of the band. Accordingly, the Commission proposes that for purposes of interference protection, earth station operators will be entitled to protection only for those frequencies, azimuths, and elevation angles and other parameters reported as in regular use (i.e
.,
at least daily) in response to future information collections, until the incumbent starts the coordination process for an application to modify its license or registration in IBFS for its earth station. The Commission further proposes that such modification applications identify and include a coordination report for the specific combinations of frequency, azimuth, and elevation angle that the incumbent intends to use and that such technical information be reflected on the earth station application and authorization. The Commission seeks comment on this proposal.
19. At the same time, the Commission acknowledges that the full-band, full-arc policy has certain advantages,
e.g.,
it affords FSS operational flexibility, and the Commission seeks comment about the consequences of eliminating the policy. Specifically, how would this policy alter current business models and operations of C-band licensees and registrants? Are there alternatives to eliminating this policy that would have less of an impact on the current C-band business models and operations without sacrificing the efficiency maximizing goals of the Commission's proposal?
e. Information on Incumbent FSS Operations
20. In the
Order,
the Commission directs incumbent FSS earth station operators to certify as to the accuracy of existing information in IBFS, and require incumbent FSS space station operators to provide additional information. To develop a more complete record on existing FSS operations in this band, the Commission proposes to require earth station operators to file additional information on their existing facilities. To the extent that the information requested would duplicate information already available in IBFS, the Commission will direct the International Bureau to permit operators to certify that the information in IBFS remains accurate in lieu of providing the information again. Specifically, the Commission proposes and seeks comment on requiring authorized earth station operators (including operators
that file new or modified registrations between April 19, 2018, and October 17, 2018) to provide the following information for each antenna under each call sign:
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6
To reduce the burden on FSS earth station operators and ensure the accuracy of data obtained during the information collection process, IB would release a public notice that will provide guidance about how to obtain or calculate the information.
• Earth station call sign;
• geographic location;
• licensee and point of contact information;
• antenna gain;
• azimuth and elevation gain pattern;
• antenna azimuth relative to true north;
• antenna elevation angle;
• satellite(s) at which the earth station is pointed;
• transponder number(s) and how often each transponder is used: Regularly (
i.e.,
at least daily); infrequently; or backup capacity;
• antenna site elevation and height above ground.
21. The Commission's consideration of some transition options may also benefit from additional, more granular information on FSS earth station and space station operations in the band. For example, information on the type of content (
i.e.,
audio or video feeds), the total bandwidth occupied by particular users or content feeds, and the identity of the content provider could provide additional clarity on the actual usage of the band. In addition, more granular information on the nature of any periodic usage of transponder capacity (
i.e.,
daily, weekly or once a year) could provide additional clarity on the availability of spectrum in the band. The Commission seeks comment on whether to seek additional information from incumbent FSS earth station or space station operators beyond what is included in the list above. Should the Commission seek additional information on transponder loading, content type, content provider information, periodic usage, or other data that would provide a more detailed picture of the actual usage of the band? Should the Commission collect other information to more fully assess spectrum utilization in the band?
22. In the
Order,
the Commission requires operators of temporary fixed or transportable earth stations to file information concerning their existing operations, including the area within which the equipment is typically used and the frequency and duration of such use. Consistent with the Commission's proposal to collect additional information from fixed FSS earth stations, the Commission seeks comment on whether and to what extent the Commission should collect additional information specifically with respect to temporary fixed or transportable earth stations. The Commission also seeks comment on whether the categories of information proposed above for fixed FSS earth stations would need to be modified or supplemented with respect to temporary fixed or transportable earth stations.
7
For example, would it be useful to further quantify the frequency or extent of use for these operations and, if so, how should they be quantified? Commenters should provide a clear rationale for any additional information collection along with an analysis of the costs and benefits of such additional collections.
7
SES and Intelsat provided many questions that could be asked about the nature of such earth stations and their patterns of use, but it may be difficult to quantify deployments for these earth stations other than typical capacity used when they are deployed and perhaps the area or areas within which they are typically used. Intelsat, SES July 3, 2018
Ex Parte
Letter (GN Docket Nos. 17-183, 18-122).
23. The Commission also seeks comment on whether to collect the information described above on a nationwide basis or whether it may be appropriate to conduct an initial information collection for an initial sample of areas. For example, should the Commission collects information from entities based on a representative sampling of different types of areas, such as urban, suburban, and rural areas? If so, how should the sample be determined? The Commission seeks comment on this and any other methodology that will effectively balance the potential burden that an information collection may impose against the need to evaluate the feasibility of clearing more spectrum in this band. The Commission also seeks comment on whether small entities and entities operating in rural areas face any special or unique issues with respect to the information collection such that they would require certain accommodations or additional time to comply. The Commission also seeks comment on the costs and benefits of an additional information collection on this band.
24. Commenters should describe, with specificity, how any additional information collection would support a given transition proposal and should provide a detailed assessment of the costs and benefits of such additional collections. The Commission also encourages commenters to submit any information that could inform the Commission's consideration of specific transition proposals, including the types of information described in this section.
2. Limiting New Space Station Operators
25. On June 21, 2018, the International Bureau released the
Space Station Freeze Public Notice,
which froze the filing of certain space-station applications in the 3.7-4.2 GHz band. To limit speculative applications for satellite usage of the band in light of this proceeding, the Commission proposes to revise the rules to similarly bar new applications for space station licenses and new petitions for market access concerning space-to-Earth operations in the 3.7-4.2 GHz band. These revisions would not extend to applications for extension, cancellation, replacement or modification of existing authorizations. Additionally, the Commission proposes that this freeze would not bar operators with existing space station authorizations in the band as of June 21, 2018, from filing applications for additional space stations, if authorization of such space stations would promote more efficient use of the band. The Commission seeks comment on the Commission's proposal.
3. Sunsetting Incumbent Point-to-Point Fixed Services
26. Due to the declining use of the band for fixed point-to-point FS links as well as the availability of other spectrum options for point-to-point links, the Commission proposes to sunset point-to-point FS use in the band. In addition, the Commission seeks comment on whether existing fixed links should be grandfathered or transitioned out of the band over some time period, after which all licenses would either be cancelled or modified to operate on a secondary, non-interference basis. If the latter, how long would incumbent users have to transition from the band? Three years? Five years? And should the Commission differentiate in treatment between those with permanent licenses and those with temporary licenses? Or those that have or are willing to relocate to the upper portion of the band?
B. Increasing the Intensity of Terrestrial Use
27. The Commission describes several potential approaches for repurposing the band and the Commission encourages commenters in discussing their proposals to consider the economic tradeoffs described herein. Figure 1 below demonstrates the current
and proposed future allocations and potential uses of the band.
EP29AU18.001
28. The Commission recognizes that co-channel sharing of spectrum between the FSS and more intensive terrestrial wireless use in the same geographic area may be difficult. For example, frequency coordination allows FSS and terrestrial fixed microwave to share the band on a co-primary basis, but coordination of mobile systems would be more complicated because the movement of the devices would require analyses and interference mitigation to FSS earth stations in this band spread over many locations within any given geographic area. In addition, because the C-band satellites are in geostationary orbit approximately 36,000 km above the equator, the signals received at the earth stations are extremely weak. This means that terrestrial mobile operations could cause harmful interference to the earth station receivers over large distances absent adequate protection.
29. Geographic sharing may be similarly difficult. Current Commission policy permits earth stations to coordinate reception across the entire GSO arc and over the entire 3.7-4.2 GHz band, which would exclude mobile wireless operations from transmitting across the entire band in a wide area around each earth station. For purposes of illustration, Figure 2 below shows a hypothetical 20 km exclusion zone around each earth station in the continental United States in the International Bureau Filing System (IBFS) database as of early May 2018.
8
These exclusion zones would cover 83.25% of the United States population.
8
The Commission notes that commenters in this proceeding have argued that IBFS significantly undercounts the number of existing, but unregistered, earth stations. For purposes of this study the Commission used earth stations currently licensed or registered in IBFS.
EP29AU18.002
30. The Commission was able to establish the Citizens Broadband Radio Service in the 3550-3700 MHz despite the presence of FSS receivers because there are only FSS earth stations in 35 cities and two MSS gateways in the 3600-3700 MHz band. This is unlike the current incumbent earth station environment in the 3.7-4.2 GHz band. Therefore, subject to confirming the landscape of existing earth stations through the certifications required by the
Order,
co-channel sharing between FSS and mobile wireless could exclude a majority of the population from receiving flexible fixed and mobile broadband service in the 3.7-4.2 GHz band unless FSS use of the band is modified or FSS protection criteria are significantly relaxed. The Commission recognizes that the affected population would likely be less if the Commission was to only protect the earth stations based on the transponder frequencies received at each site and actual antenna azimuth and elevation, but the overall assessment that mobile service would not be viable for much of the population would remain the same. The Commission seeks comment on this assessment.
31. Notably, the Commission believes that increased terrestrial use of the band is ripe to meet the Commission's mandate under the MOBILE NOW Act to identify (with NTIA) 255 megahertz of spectrum for mobile and fixed wireless broadband use. For purposes of meeting § 603(a)(1), § 603(a)(3)(E) states “[s]pectrum that the Commission determines had more than
de minimis
mobile or fixed wireless broadband operations within the band on the day before the date of enactment of this Act” is non-eligible for purposes of satisfying the 255 megahertz requirement. The Commission believes that there was no more than a
de minimis
amount of mobile or fixed wireless broadband operations in the 3.7-4.2 GHz band on March 22, 2018 (the day before the date of enactment of the MOBILE NOW Act) for purposes of fulfilling § 603. Specifically, since FSS is neither an “unlicensed use” nor an “exclusive, licensed basis for commercial mobile use,” FSS services are not included in the
de minimis
exception under § 603(a)(3)(E). Additionally, FSS in the band is predominantly used for the delivery of video programming with only a
de minimis
portion of the satellite capacity used to provide data services. The Commission notes that there is no mobile allocation in the band and the Commission's licensing database indicates that there are only 115 fixed point-to-point licenses in the band. Thus, any portion of this band made available for flexible terrestrial or more intensive fixed use would help satisfy the requirement of § 603(a)(1) to identify a total of at least 255 megahertz of spectrum for “mobile and fixed wireless broadband use.” The Commission seeks comment on these findings.
32. The Commission seeks comment on approaches for expanding flexible and more intensive fixed use of the band without causing harmful interference to incumbent operations. In discussing how much of the band should be made available for flexible use, more intensive fixed use, or maintained just for incumbent uses, the Commission asks commenters to address the relative present and future economic value of each of these services to individuals and businesses in the United States. What are the tradeoffs in accommodating one type of use instead of another? And what are the costs associated with accommodating new uses? Commenters should provide a detailed cost-benefit analysis in their proposal and address the relative economic values of alternative uses and the implementation costs of their specific proposal vis-à-vis other possible approaches to the band. The Commission also asks commenters to address the economic impact of the implementation time frame associated with their chosen approach.
33. The Commission proposes to add a non-federal mobile, except aeronautical mobile, service allocation to the 3.7-4.2 GHz band, and given the Commission's conclusion that co-channel sharing is not feasible, seek comment on several proposals below to clear all or part of the band for flexible use. In particular, the Commission seeks comment on the economic benefits of introducing a new allocation for mobile, except aeronautical mobile, and flexible use relative to the introduction of point-to-multipoint FS, perhaps shared with FSS, in all or part of the 3.7-4.2 GHz band. Commenters should consider the economic value of current and future use cases for each type of service, including benefits and opportunity costs to consumers and the Nation's economy overall, as well as to unserved or underserved areas and specialized market segments (
e.g.,
education, telemedicine, and manufacturing).
Commenters should also address the benefits of international harmonization both in terms of devices and network deployments. In addition, the Commission encourages commenters to consider the economic impact on consumers and businesses in rural communities and areas that are unserved or underserved by current broadband providers, as well as any economic impact on small businesses. The Commission also asks commenters to address how long it will take to transition various amounts of this band to flexible use or to point-to-multipoint FS use, how much such a transition will cost for each 100 megahertz that is transitioned, and how expeditiously the transition can be completed.
34. The Commission also seeks comment on the current and future economic value of FSS in the band. How intensively is this spectrum used by existing FSS licensees and how intensely will it be utilized in the future? Is spectrum in the band allocated to FSS currently being used efficiently and are there technologies that may facilitate more efficient use of spectrum in the band by FSS licensees without significant disruption to consumers and businesses that rely on these services? Are there alternative technologies available that could wholly or partially replace the services provided by FSS without significant disruption to existing customers? How long would it take and how much would it cost to transition existing customers to these alternative technologies? How may the cost-benefit analysis shift depending on how much spectrum is transitioned at particular times? Are there other considerations that the Commission should consider when assessing the most economically efficient allocation of the band between services? And would such considerations differ depending on when and how much spectrum is ultimately transitioned to flexible use?
1. Mechanisms for Expanding Flexible Use
35. Repurposing of the 3.7-4.2 GHz spectrum bands allocated to FSS raises at least three economic problems, some of which have not arisen in previous spectrum auctions. The first two problems are direct consequences of the C-band licensing structure, while the last is common to all spectrum reallocations. First, because all FSS licensees have equal, nonexclusive rights to the entire band under part 25 of the Commission's rules, they cannot compete in the same way that broadcast television licensees did in the broadcast incentive auction. Second, this nonexclusive licensing problem creates an incentive for an FSS licensee to overstate the value it assigns to the spectrum in order to increase the share of auction revenue it may receive. The Commission will refer to this as the “holdout” problem. Third, repurposing some of the 3.7-4.2 GHz spectrum band will reduce the amount of spectrum available for FSS, which lowers industry capacity and could lead to higher prices for downstream services, such as the transmission of video to cable head ends. The Commission notes that the first and last problems create opposite incentives for FSS licensees. The first provides an incentive to repurpose less than the efficient amount of spectrum while the last may create an incentive to repurpose more than the efficient amount.
36. The broadcast incentive auction relied on competition among licensees to induce broadcast incumbents to reveal the least amount they must be paid to relinquish their spectrum rights. Many broadcast licenses were substitutes because if one licensee bid to relinquish its spectrum usage rights this could make spectrum available to repack other broadcast stations and free spectrum for flexible use. In the 3.7-4.2 GHz FSS, all licensees must agree to relinquish their spectrum rights in a given geographic area in order to reassign spectrum and therefore licenses are not substitutes and competition is limited.
37. In addition to the problem that satellite licensees will not be competing to supply spectrum in the same way that television licensees did in the broadband incentive auction, there is an additional problem concerning how the satellite licensees will split any revenues from repurposing. In order to increase its share of auction revenues, a FSS licensee may have an incentive to overstate the value it assigns to the spectrum or to withhold its consent to repurpose. The holdout problem is the inverse of a public goods problem. The 500 megahertz of spectrum allocated for FSS is a public good, in that several distinct companies make non-exclusive, non-rivalrous use of the spectrum within a geographic area.
9
Were the spectrum unallocated, the FSS providers would face a classic public goods problem since the total value of the spectrum is the sum of the values of the FSS operators. With property rights assigned to FSS operators, the Commission faces a reverse public goods problem: How to recover an efficient amount of a public good which is no longer efficiently allocated? In the classic public goods problem, if individuals are asked to pay for the public good based on their valuation of that good, they will have an incentive to understate their value for the public good to lower their payment. In the reverse problem, however, each FSS licensee has an incentive to overstate its value of the spectrum in order to increase its payment.
9
The Commission notes, however, that orbital slots are rivalrous.
38. Several mechanisms have been developed to generate an efficient allocation of public goods, including one proposed by Hal Varian. In the standard public goods case, Varian proposed that individuals have the opportunity to subsidize the contributions of others towards the public good in a first-stage and then decide how much to contribute in a second-stage. Can such mechanisms be adapted to solve the holdout problem under consideration here? For example, in the first stage might each party announce the share of the payment it receives that it will give to each other party and in the second stage nominate how much spectrum to clear? Can such a mechanism be modified to mitigate the incentive to clear less than the efficient amount of spectrum? Some commenters suggest having the FSS providers meet, privately negotiate, and agree to put spectrum up for auction. The Commission seeks comment on the relative merits of FSS provider cooperation versus a more formal, non-cooperative mechanism, especially with regard to the three economic problems.
39. FSS operators currently compete to provide communication services (for example, to deliver programming content to rural cable companies). For the efficient allocation of spectrum, the social value of these services needs to be balanced against the social value of alternative services that could be provided by that spectrum, such as mobile data. Several commenters, such as the American Cable Association, contend that earth stations can and do switch providers, suggesting that competition currently exists in the C-band. Since a reduction in industry capacity generally leads to higher prices, reducing the spectrum associated with FSS may have the unintended consequence of increasing the price of FSS services and consequently of downstream services. Conversely, such a reduction should correspond with an increase in industry capacity for high-speed wireless broadband services, which would tend to lead to lower prices. How should the Commission evaluate proposed mechanisms with regard to their effect on downstream users of FSS and wireless broadband
services? How should the Commission take into account other opportunities to deliver these services—such as other means of transmitting programming data like alternative satellite bands
10
or fiber and other means of transmitting high-speed broadband like other mid-band spectrum or fiber—in evaluating these effects?
10
The Commission recognizes that other transmission methods may also compete against satellite transmission via C-band spectrum. For example, in certain urban and suburban areas where fiber is widely deployed, fiber may be a cost-effective alternative. And there may be other radio spectrum that can deliver video transmission, such as the Ku band.
40. In addition, the value of spectrum in alternative uses like mobile data is likely highest in dense urban areas. When the Commission has sold spectrum by geographic region, the prices obtained have been positively correlated with population density. FSS substitutes, particularly fiber, are most prevalent in urban areas while in rural areas there are fewer FSS substitutes. Thus, in rural areas, typically the value of the spectrum remaining in FSS is relatively high while the opportunity cost of clearing less flexible-use spectrum is relatively low, suggesting that the amount of spectrum repurposed should vary across geographic areas. The Commission therefore seeks comment on whether the Commission should repurpose a minimum amount of spectrum nationwide, and make additional fully unencumbered spectrum available in any areas where it is less costly to transition earth stations to other forms of transmission. Under this approach, the Commission also seeks comment on the appropriate size of such regions. If the regions are too small, this could make mobile data use impractical because it would not give wireless providers sufficient flexibility to scale their networks using this band, while if the regions are too large, this could threaten rural services because those regions would not be attractive to small and rural wireless providers. Is it practical to create regions based on the existence of alternatives to FSS like fiber? The Commission seeks comment on whether any flexible use licenses should also be overlay licenses, for which the terrestrial licensee is obligated to protect licensed or registered earth stations and can use any spectrum that becomes available by clearing earth stations.
41. Another consideration in the geographical division of spectrum involves the parties to compensate. Instead of paying FSS operators for relinquishing spectrum usage rights nationwide or in specific geographic regions a mechanism instead might pay earth stations for relinquishing access to C-band spectrum in specific geographic areas. Such earth stations might discontinue use in these areas by discontinuing receiving content or by receiving it by alternative transmission infrastructure like fiber, where the content might be delivered to the fiber from C-band earth stations in rural areas. Would such a mechanism present an alternative supplier of spectrum—with either the FSS operators or the earth stations effectively releasing spectrum rights? The Commission notes, however, that the holdout problem for licensed earth stations is likely more severe because there are more such earth stations that are independently owned than satellite operators. The Commission seeks comment on the practicality and social value of compensating licensed earth stations in exchange for agreeing to no longer be licensed to receive in the 3.7-4.2 GHz band. In particular, would such a mechanism protect those earth stations but not unlicensed earth stations? Also, how would satellite operators be compensated for loss of revenues after the expiration of their contracts with content providers serving the licensed earth stations that discontinued their reliance on satellite delivery of content?
a. A Market-Based Mechanism
42. The commission seeks comment on whether the Commission should adopt rules that would facilitate a market-based approach to transitioning incumbents from some or all of the 3.7-4.2 GHz band. Under such an approach, the Commission would authorize incumbent FSS operators to voluntarily clear all or part of the band. Satellite operators in the band could choose to make some or all of their spectrum available to terrestrial operators on the secondary market in exchange for compensation. Under such an approach, satellite operators could be responsible for clearing the portion of the band that would be made available for flexible use, including notifying earth stations of the need to modify their operations and compensating them for any costs associated with that transition.
43. A secondary market approach might make spectrum available more quickly than other available mechanisms, such as an FCC auction, and thus could facilitate rapid deployment of next generation wireless broadband networks. In addition, such an approach could leverage the technical and operational knowledge of satellite space station operators while relying on market incentives to promote economic efficiency. The Commission seeks comment on whether a market-based approach could effectively and rapidly facilitate new terrestrial deployments in the band. The Commission also seeks comment on whether a market-based approach that allows FSS licensees to coordinate their capacity would raise any antitrust concerns.
44. The Commission seeks comment on the efficacy of using a market-based approach to transition some or all of the 3.7-4.2 GHz band to flexible terrestrial use. The Commission observes, and some commenters in the record maintain, that a significant benefit of a market-based approach may be a more rapid introduction of C-band spectrum to the market. For example, Intel, Intelsat, and SES claim that their consortium approach would result in licensed mobile services within 18-36 months of a Commission order. Commenters also should address the costs and benefits of this approach vis-à-vis the alternative proposals set forth in this section.
45. The Commission seeks comment on using a market-based approach through a Transition Facilitator, a cooperative entity created by relevant satellite operators to coordinate negotiations, clearing, and repacking the band. The Commission notes that because of the holdout problem, a market-based approach in which FSS licensees act independently is unlikely to succeed. Consequently, should the Commission allow, encourage, or require satellite operators to cooperate in negotiating with potential terrestrial mobile licensees and in clearing an agreed amount of spectrum? A market-based approach that uses a Transition Facilitator would enable the satellite operators to use private negotiations to obtain participation and agreement from the relevant satellite operators, rather than requiring the Commission to address holdouts using more regulatory mechanisms.
46. The Commission seeks comment on whether using a market-based approach in which FSS operators form a Transition Facilitator would produce an economically efficient outcome. Specifically, would allowing all potential sellers to agree on the amount and price of the spectrum that will be repurposed result in a situation in which those sellers offer a lower quantity than is socially efficient? Is that concern mitigated by the fact that the market for spectrum for high-speed broadband services is much broader than just the 3.7-4.2 GHz band? The Commission seeks comment regarding some of these concerns about the potential effects of allowing collective
action by C-band satellite operators below. The Commission also seeks comment on whether a Transition Facilitator raises any particular antitrust concerns.
47. A transition under a market-based approach could be undertaken in a four-step process. The first step would involve the industry voluntarily forming a Transition Facilitator composed of eligible C-band satellite operators.
11
In the second step, the Transition Facilitator would negotiate with any interested terrestrial operators and incumbent users. In the third step, the Commission would review the Transition Facilitator's plan and conditionally authorize terrestrial licenses in the band. And in step four, the Transition Facilitator would clear the negotiated-for spectrum, making it available for flexible use while protecting incumbent earth stations through a variety of potential means. The Commission notes as well that a market-based process need not be a one-time event—a Transition Facilitator could negotiate with parties for compensation and protection, seek Commission review and conditional authorization, and clear new spectrum multiple times to ensure the total spectrum dedicated to flexible use meets market demands. The Commission seeks comment on the effectiveness of such a four-step process. In addition, the Commission invites commenters supporting a market-based approach to suggest additional details to the steps described below or other specific approaches for implementation.
11
In this context, clearing refers to relinquishing interference protection. Satellite transmissions that do not cause interference to terrestrial operations would not necessarily have to be cleared.
48.
Step 1: Formation of a Transition Facilitator.
—The first step in the process would be for the industry to form a Transition Facilitator. Once the Transition Facilitator is formed and ready to begin negotiations with potential licensees, the Transition Facilitator would notify the Commission of its membership, its charter,
i.e.,
its structure, objectives, and planned operation, and its compliance with any rules adopted as a result of this proceeding. Once the Transition Facilitator has filed its notification, the Commission would have 60 days to review the filing and formally object to its creation through an order. The Commission seeks comment on this process. What additional information might the Commission need to conduct such a review? Should any parties have the opportunity to formally object? Should the Commission be required to affirmatively approve or reject the formation of a Transition Facilitator, and if so on what timeline?
49. There is record support for a centralized facilitator. Intelsat and SES—the two largest incumbent satellite operators in the 3.7-4.2 GHz band—support a consortium-based facilitator. While Eutelsat raises concerns regarding how satellite operators eligible to participate in a market-based approach would be defined it has stated publicly that it wants to participate. In considering such an approach, the Commission thus asks commenters to address how to define eligibility to participate in the Transition Facilitator. The Commission seeks comment on opening eligibility to participate in the Transition Facilitator to all C-band satellite operators providing service to any part of the United States pursuant to an FCC-issued license or grant of market access. Should the Commission limit eligibility in any way, such as requiring service throughout the lower 48 states?
50. Given the holdout problem, the Commission does not propose to require that all eligible satellite operators agree to a Transition Facilitator before it can take effect. Instead, the Commission seeks comment on the appropriate number of satellite spectrum interests in the band—a majority? all but one?—that should be represented by the Transition Facilitator to effectuate a successful transition. Are a minimum number of operators required to participate in the Transition Facilitator for this approach to work? If this number is not met, should the Transition Facilitator be approved by the Commission?
51. The Commission also seeks comment on what the Transition Facilitator should do if one or more eligible C-band satellite operators choose not to participate in the Transition Facilitator. Are any Commission actions necessary if one or more eligible C-band satellite operators do not join the Transition Facilitator? The Commission notes that Intelsat and SES propose that eligible C-band satellite operators that do not join a centralized facilitator would nonetheless have their “reconfiguration and relocation costs covered.” How would such a process work? Should the Transition Facilitator, or members of the Transition Facilitator, negotiate with non-participating satellite companies to ensure the spectrum is successfully repurposed? Or should non-participating satellite companies be bound by the decisions of the Transition Facilitator? If the latter, would a non-participating satellite company be limited to recouping its costs? Or would it be even eligible to recoup costs so long as the Transition Facilitator adequately protects its associated incumbent earth stations?
52. If there are earth station registrants or licensees that have no contractual relationship with any of the members of the Transition Facilitator or any FSS space station operators, will that create difficulties in clearing the band during later steps in the process? If so, how can those difficulties be addressed? Is there any reason that the Transition Facilitator would not able to negotiate with earth stations that don't have contractual relationships with any of the Transition Facilitator's members? Should there be a requirement that the C-band operators participating in the Transition Facilitator have contractual relationships with a minimum percentage of protected incumbent earth stations to avoid these potential difficulties? Should the Transition Facilitator be required to work with non-participating satellite companies to protect incumbent earth stations, or should the Transition Facilitator be free to work directly with those entities?
53. To ensure that the transition process proceeds expeditiously, should the Commission establish a benchmark for the Transition Facilitator filing of six months after
Federal Register
publication of an order in this proceeding?
12
What if a Transition Facilitator is not created within the specified timeframe? Should the Commission have in place other means of reassigning the spectrum? Finally, the Commission also seeks comment on what form of supervisory authority the Commission should maintain over the Transition Facilitator, if any.
12
The Commission will release a Public Notice announcing the start of the transition period.
54.
Step 2: Negotiation Period.
—The next step in the process would be to undertake negotiations for spectrum rights in the band. The Commission anticipates that the Transition Facilitator would engage in a multi-step process to negotiate with prospective licensees and protected incumbent earth stations in the band. The result of these negotiations would be a Transition Facilitation Plan that would lay out what spectrum would be made available for flexible use (and where) as well as the steps the Transition Facilitator plans to take to ensure that protected incumbent earth stations continue to have access to the content or bandwidth they currently receive using C-band earth stations.
55. For example, the negotiation process could include the following steps. First, the Transition Facilitator
would identify the profit-maximizing feasible amount of spectrum to make available by soliciting inquiries from all interested terrestrial wireless parties and negotiating for specific spectrum blocks and markets. This amount of spectrum demanded might adjust during the course of negotiations. The Transition Facilitator would then conclude private agreements to protect incumbent earth stations and determine the total available supply. Next, having balanced the supply and the demand, the Transition Facilitator would provide each prospective licensee with a certification of the specific spectrum block(s) and market(s) negotiated for in the associated private agreement. Finally, the Transition Facilitator would file its Transition Facilitation Plan with the Commission. The Commission seeks detailed comment on this possible approach, including what, if any, Commission oversight is warranted. The Commission also seeks comment on this approach's costs and benefits as well as any alternative approaches.
56. Given the high demand for and high-value of mid-band spectrum, the Commission should strive to adopt a mechanism that will repurpose a socially efficient amount of spectrum in the band. Intelsat-SES-Intel believe that consortium members could make approximately 100 megahertz of spectrum available for licensed terrestrial service via privately negotiated agreements between consortium members and prospective terrestrial licensees. In addition, under that proposal, consortium members would clear an additional 40 to 60 megahertz above this spectrum to act as an internal band to protect against harmful interference from transmissions in the adjacent spectrum. Intel maintains that, if the demand for terrestrial mobile spectrum is as robust as commonly believed by 5G supporters, this market-based approach could clear additional spectrum beyond the 100 megahertz proposed by Intelsat and SES in the same timeframe. The Commission notes that T-Mobile asserts that a market-based approach “creates tremendous uncertainty regarding the availability of this spectrum for mobile broadband services and will likely result in inefficient reallocation of spectrum.” To address this concern, the Commission seeks comment on whether to require that an Initial Minimum Spectrum Benchmark—a socially efficient amount of spectrum—be repurposed in the band in order to use a market-based approach, and what this amount should be. Should the Commission set the Initial Minimum Spectrum Benchmark to be 100 megahertz, given the comments of Intelsat and SES? Would a higher or lower benchmark be appropriate? Should the Commission require the Transition Facilitation Plan to require the clearing of at least the Initial Minimum Spectrum Benchmark for approval? In addition, the Commission seeks comment on whether an internal protection band is necessary both above and below (
i.e.,
below 3.7 GHz) the repurposed spectrum. What benchmarks should be set for clearing an internal protection band? Commenters should describe the appropriate amount of spectrum to be repurposed, taking into account economic considerations and the expected time and costs associated with repurposing the spectrum.
57. To ensure a timely transition process, should the Commission set specific benchmarks for the completion of initial negotiations with potential terrestrial licensees as well as protected incumbent earth stations? Intel, Intelsat, and SES maintain that such negotiations could be completed within three to eight months. The Commission asks commenters to consider whether eight months is an appropriate benchmark for completion of Transition Facilitator negotiations and submission of the Transition Facilitation Plan. What should be the effect of a failure to meet such a benchmark?
58. The Commission seeks comment on how to ensure that the market-based approach's negotiation process will facilitate a competitive and open market. For example, should the Commission require that all parties act in good faith? What other rules could the Commission adopt to ensure competition in the marketplace? The Commission notes that T-Mobile raises concerns that satellite operators could choose to limit the amount of spectrum available for flexible use in order to increase their profits, while others claim it will not take into sufficient account the interests of protected incumbent earth stations. How can the Commission ensure the negotiation process accounts for the interests of all stakeholders that have interests in the band—from new wireless entrants to existing satellite operators to protected incumbent earth stations, from those living in rural America to those living in cities? Would Commission oversight of this market-based approach—or over the Transition Facilitator—benefit in any way from insights from antitrust law?
59. The Commission also seeks comment on what role, if any, the Commission should play to facilitate or oversee these private market negotiations. For example, should the Commission allow some flexibility for the negotiators to make more spectrum available in some markets than others, potentially allowing a limited number of earth stations to continue to operate using wider bandwidths in certain areas where wireless operators are less interested in deploying (
e.g.,
remote rural areas)? Should the Commission have some input on the FSS frequencies to be made available for private-market negotiations? How should these determinations be made? A market-based approach would not likely result in mutually exclusive applications for the Commission to consider if, for example, a negotiated agreement with the Transition Facilitator is a prerequisite for applying for a license in this band. Would this negotiation satisfy the Commission's obligation in the public interest to use negotiation to avoid mutual exclusivity pursuant to § 309(j)(6)(E) of the Communications Act?
60. The Commission also asks commenters to discuss the requirements and safeguards that the Commission should adopt, if any, to ensure that these privately negotiated agreements result in a timely and complete transition. The Commission will expect parties to negotiate a full range of transition commitments and penalties for failure to meet transition benchmarks. Nonetheless, does the Commission need to adopt baseline requirements, such as defining comparable facilities, including the relocation of incumbent operations to another band, to fiber, and/or to more efficient technologies? What would be the relative costs and benefits associated with adopting such requirements? Would such definitions or rules minimize disruption to existing operations during the transition? Are there mechanisms the Commission can adopt to ensure that all or specific categories of incumbents are not adversely affected by repacking of this band? For example, should the Commission require FSS space station licensees that are going to cease transmitting on a primary basis to notify earth stations receiving those signals? Could the parties determine that the transitioning of facilities should be undertaken by the terrestrial licensee instead of the Transition Facilitator? If so, would the parties or the FCC establish a benchmark for completing such a transition? Should the Transition Facilitator be required to have a mechanism for receiving reports from incumbents that experience disruptions, and should the Transition Facilitator also be required to notify the
Commission when it receives such reports? The Commission invites commenters to address the specific form of notification required, the time period for providing each notification, and the costs and benefits of each notification requirement.
61. If the Commission's role were more limited, what level of transparency, if any, should be required during the negotiation process? For example, should satellite operators be required to notify the Commission regarding the status of on-going negotiations? What types of information should be included in such a notice? Further, should the Commission require the filing of periodic reports (
e.g.,
quarterly, bi-annually, annually) to ensure that the overall transition of this band will be completed in a timely manner? What should such reports include? The Commission encourages interested parties to provide detailed comments regarding the level of Commission oversight envisioned for this process including how such oversight comports with the Commission's obligation to assign spectrum in the public interest.
62.
Step 3: Conditional Authorization of Mobile Licensees.
—Upon the submission of a Transition Facilitation Plan, the next step would be Commission review and approval of the plan, followed by applications for terrestrial license authorizations filed pursuant to the plan. The Commission seeks comment on this process. To facilitate a streamlined review, the Commission seeks comment on allowing applications for new terrestrial authorizations to be filed at the same time as a Transition Facilitation Plan, or while the Commission reviews that plan. And to avoid undue delay in commencing the band clearing process, the Commission seeks comment on the appropriate timing, criteria, and conditions that should apply to new license authorizations.
63. The Commission seeks comment on conducting the review of the Transition Facilitation Plan. Most specifically, how should the Commission ensure that protected incumbent earth stations are indeed protected? What types of certifications should be required to ensure that the Commission can take all appropriate actions to ensure that the Transition Facilitator and its members carry out the Transition Facilitation Plan and appropriately protect, compensate, and ensure adequate access for relevant stakeholder? Should the Commission make the plan available to comment, and what confidential information is likely to be included? How should the Commission evaluate the various methods suggested for protecting incumbent earth stations, such as installing filters, extending fiber, offering service on new satellites or in new satellite bands, offering service over microwave links, and creating geographic separation from harmful interference (likely only in rural areas)? What level of granularity should the Commission require the steps of the Transition Facilitation Plan to meet? And how long should the Commission have to review and approve or reject a Transition Facilitation Plan?
64. The Commission seeks comment on how to address initial licensing applications. First, the Commission seeks comment on establishing a 30-day filing window for new terrestrial license applications. Prospective licensees would file an application for any new licenses they have agreed to acquire through their negotiations with the Transition Facilitator, along with a certification from the Transition Facilitator to clear that portion of the band for the terrestrial operator's use. Should the Commission require any other specific information to be submitted as part of the application process? Applications would be accepted and reviewed pursuant to the requirements and procedures set forth in part 1 of the Commission's rules, including, among other things, the filing of certain FCC forms, release of a public notice listing the application as accepted for filing, and the opportunity for third parties to file petitions to deny the application. Upon the Commission's review and confirmation that the applicant has complied with all other Commission filing and qualification requirements, the Commission would grant a license subject to certain conditions discussed below. Second, the Commission could treat the Transition Facilitation Plan as an application for all the flexible use licenses that would be made available as a result of it being carried out, and then allow the Transition Facilitator and prospective licensees to file separate applications to transfer those licenses as the parties saw fit. Under this approach, the Transition Facilitation Plan would also have to comport with the requirements and procedures set forth in Part 1 of the Commission's rules and would be conditioned as discussed below.
65. The Commission will condition authorizations for licensed terrestrial operations on the licensee not commencing operations until the Transition Facilitation Plan's protections for incumbent earth stations have been carried out in that area (and subject to those conditions to the extent the plan requires geographic or other sharing). The provisions of any private agreement to transition designated spectrum to licensed terrestrial operations would therefore need to comply with the service rules the Commission may ultimately adopt in this proceeding. For example, under this approach, the deadlines for a licensee's regulatory obligations, including construction benchmarks, would begin running on the date of license issuance. The Commission therefore anticipates that private agreements would take construction deadlines into account when negotiating the date by which the Transition Facilitator must clear the relevant spectrum such that the licensee may commence operations. However, the Commission seeks comment on whether the Commission should consider the individually negotiated time periods for band clearing when setting the deadlines for each licensee's satisfaction of its construction benchmarks. The Commission seeks comment on these and any other conditions on new license authorizations that would facilitate efficient implementation of the market-based approach.
66. Additionally, the Commission seeks comment on what, if any, conditions should be placed on the license with respect to the protection or relocation of the approximately 115 incumbent microwave links in the band that would sunset under out proposal. For example, should the Commission require as a condition of the license that new licensees either protect or relocate incumbent users under the same part 27 and part 101 rules used for incumbent microwave links in the Advanced Wireless Services (AWS) bands or under some other protection and/or relocation mechanism?
67. To ensure a timely transition process, should the Commission set specific benchmarks for the completion of its review of the Transition Facilitation Plan and the processing of conditional authorizations? Intel, Intelsat, and SES expect the review process would take two to seven months, and propose the license grant would trigger certain obligations under private agreements, including the clearing of the band within 12-20 months. The Commission seeks comment on a process whereby the Commission would take action on all unopposed applications found acceptable for filing within four months from the commencement of the filing window discussed above (
i.e.,
a 30-day filing window plus three months of review). Upon completion of the four-month application and review process,
the Commission would notify the Transition Facilitator that it may begin clearing the designated spectrum in the band. The Commission seeks comment on this approach to triggering the commencement of the band-clearing process. Should the process instead be triggered only upon the Commission's grant of all licenses negotiated by the Transition Facilitator? Or is a certain critical mass of license grants sufficient to begin clearing incumbent users from the band? For example, to avoid undue delay of licensed operations in the band, would it be appropriate to begin clearing the band upon issuance of licenses authorized for operation in a certain portion of contiguous spectrum in the band? The Commission seeks comment on these and any other benchmarks that may be appropriate.
68. The Commission also recognizes that the Transition Facilitator may find it necessary and beneficial to modify certain aspects of its Transition Facilitation Plan. The Commission therefore seeks comment on allowing the Wireless Telecommunications Bureau to approve minor amendments to the Transition Facilitation Plan that would not increase harmful interference to protected incumbent earth stations.
69. The Commission notes that the ultimate assignment of any license is subject to FCC approval under § 310(d) of the Communications Act. The Commission therefore seeks comment on the application process described above and any other application criteria that may be appropriate to fulfill the Commission's statutory obligations to license spectrum in the public interest and ensure that spectrum is put to its highest and best use.
70.
Step 4—Band Clearing.
Following approval of the Transition Facilitation Plan and grant of new terrestrial licenses in the band, the final step would be clearing certain incumbent users as needed from the designated spectrum and giving new terrestrial licensees access to their licensed spectrum. The Commission seeks comment on the best way to effectuate this process.
71. The Commission seeks comment on reasonable benchmarks for incumbents to cease transmitting on a primary basis in the portion of the 3.7-4.2 GHz band that becomes available for flexible use, a process Intel, Intelsat, and SES expect to take 12-20 months. The Commission seeks comment on providing the Transition Facilitator with 20 months to clear incumbent users from the designated spectrum in the band. Under this approach, the Transition Facilitator would be responsible for enforcing the various private agreements between new terrestrial licensees and incumbent users to clear the band. As spectrum becomes available for licensed use, the Transition Facilitator would notify licensees that they may begin operating in particular areas covered by their licenses where the spectrum has been cleared.
13
In light of the Commission's expectation that spectrum will be cleared incrementally over the course of the 20-month band-clearing process, the Commission proposes to require the Transition Facilitator to provide periodic updates notifying the Commission of the specific spectrum that has been cleared. Should the Commission require the Transition Facilitator to file status reports at various benchmarks (
e.g.,
every four months)? The Commission seeks comment on these and any other benchmarks that may be appropriate to promote timely completion of the band-clearing process.
13
The entire area covered by a new license would not need to be cleared in order for licensees to begin operating. Instead, subject to their individual agreements, the Transition Facilitator could begin notifying licensees of their ability to begin operations once certain portions of the area covered by the license (
e.g.,
counties) have been cleared.
72. Finally, in light of our goal to promote the rapid deployment of new licensed terrestrial operations in the 3.7-4.2 GHz band, the Commission seeks comment on any further safeguards that should apply during the band-clearing process to ensure the transition is completed within a reasonable period of time. The Commission expects that the private agreements between new terrestrial licensees and incumbent users would contain provisions and penalties sufficient to address either party's failure to satisfy their respective contractual obligations in a timely manner. In addition to, and independent of, those private agreements, the Commission seeks comment on any appropriate penalties that should apply in the event that the Transition Facilitator is unable to clear the designated spectrum within the 20-month time period discussed above. What, if any, opportunities to cure should the Commission provide? For example, should the Commission allow new terrestrial licensees and incumbent users that default on their private agreements to re-enter the process beginning with Step 2 negotiations? If so, should the Commission apply more abbreviated time periods for the completion of each step? The Commission seeks comment on these and any other actions that may be appropriate to provide adequate opportunity for successful completion of a market-based approach, while also ensuring a rapid and efficient transition to flexible use in the 3.7-4.2 GHz band.
b. Auction Mechanisms
73. The Commission seeks comment on various auction approaches to expand flexible use of the band. Specifically, the Commission asks commenters to consider whether an overlay auction, incentive auction, capacity auction or other auction mechanism could be used to create opportunities for flexible use of the band.
74.
Overlay Auction.
—An overlay license authorizes operations for an entire geographic area but requires the licensee to protect existing incumbents from interference indefinitely,
i.e.,
until the rights are relinquished. The Commission notes that the Commission has used overlay licensing to transition several bands from site-based to geographic-area licensing.
75. The Commission seeks comment on whether the Commission shall accept applications for one or more overlay licenses—assigned by competitive bidding if mutually exclusive applications for it were accepted—that would permit an overlay licensee to negotiate with both incumbent space station licensees and earth station owners and operators to clear all or part of the band. The Commission also seeks comment on whether the Commission shall require the overlay licensee(s) to transfer flexible use licenses in the secondary market (
i.e.,
limit an individual licensee from holding more than a certain amount of spectrum in each market). Under this approach, the overlay licensee(s) would have the right to flexible use of any spectrum that becomes available as a result of incumbents' relinquishing their spectrum usage rights. If this approach were adopted, the Commission's presumption would be that incumbent space station licensees could bid individually, but not as a consortium. Allowing incumbents to bid collectively would eliminate the possibility of competition among them for the overlay license, and would discourage other potential bidders from participating in the auction. To encourage participation in the auction, are there rules the Commission can adopt to share the risk (between bidders and the U.S. Treasury) of a less profitable repurpose than anticipated? The Commission also seeks comment on whether, if no voluntary agreement is reached between an overlay licensee and earth station operators after some number of years, the earth station operators should be
required to discontinue operation in some portion of the 3.7-4.2 GHz band if requested by the overlay licensee and if the overlay licensee delivers equivalent quality service to the locations of the earth stations that would no longer be protected. The Commission seeks comment on how equivalent quality service should be defined, especially with respect to reliability. The Commission also seeks comment on how many years incumbent earth station operators should have before they would no longer receive protection in the 3.7-4.2 GHz band, and whether this deadline should apply to all areas or only to high-population-density areas. If the latter, how should such areas be defined?
76. Would assigning an overlay license or licenses for all of the band expedite flexible use of more of the band compared to other approaches? Compared to the market-based proposal, the overlay license approach potentially would allow non-incumbent bidders to develop innovative ways to clear the spectrum and clear more spectrum or varying amounts of spectrum depending on the relative costs and benefits of such repurposing. On the other hand, an overlay licensee may take longer to clear spectrum because the two largest FSS space station operators appear to already have an agreement on how to clear at least 100 megahertz for flexible use.
77. The Commission also seeks comment on how all parties that would be affected by repurposing 3.7-4.2 GHz band spectrum should be treated. In particular, should the space station operators relinquishing spectrum or the overlay licensee be required to provide incumbent earth station operators comparable replacement facilities or media? Would an overlay auction expedite the provision of terrestrial mobile services in the 3.7-4.2 GHz band or facilitate making more than 100 megahertz of the band available for flexible use? Commenters should also address the potential costs and benefits of an overlay approach for consumers and businesses in rural and underserved communities, as well as any economic impact on small businesses, and discuss any rules or procedures that could be implemented to ensure that the needs of these communities and businesses are adequately addressed. The Commission invites comment on these issues and on other matters that it may need to address to conduct an overlay auction in this band.
78.
Incentive Auction.
—The Commission also seeks comment on approaches using the Commission's general incentive auction authority to introduce flexible use in the 3.7-4.2 GHz band. One commenter suggests that “[FSS incumbent] satellite operators, earth station licensees, and microwave licensees all could participate in a reverse auction and choose from among several options including, for example, vacating the band for another or a fiber alternative; limiting operations to a smaller swath of spectrum; or moving to a more remote location.” A forward auction would then generate the revenues from new entrants to support the reverse auction results, and repack incumbents into the remaining portion of the band for FSS and/or move earth stations to more remote locations.
79. The Commission seeks comment on whether a variation of the incentive auction could work in the context of the 3.7-4.2 GHz band. The Commission notes that in the case of the Commission's incentive auction authority, there is a legal aspect to the problem of FSS satellite operators' incentives to reduce the amount of spectrum for repurposing discussed above. Specifically, the Commission's legal authority to use that mechanism depends on having “at least two competing licensees participate in the reverse auction.” Would the Varian approach, discussed above, satisfy the statutory requirement that an incentive auction have at least two competing bidders take part in the reverse auction? The Commission seeks comment on means of inducing supply competition, such as by bringing in alternative bands as substitutes, both to insure a more competitive and efficient outcome, and to meet the legal requirement of having competing licensees participate in the reverse auction. The Commission also seeks comment on whether provision of supply by licensed earth stations can substitute for provision by FSS operators.
80.
Capacity Auction.
—As an alternative to paying satellite incumbents to directly relinquish their rights to operate on specified frequencies, the Commission seeks comment on a reverse auction for satellite transponder capacity that could be used to compensate the satellite incumbents for giving up C-band transponder capacity in order to enable the Commission to reallocate C-band spectrum to flexible use. Under this approach, an individual bidder in the reverse auction would help to clear spectrum by bidding to relinquish some (or all) of the bundle of rights they hold under their licenses and the Commission's rules to lease capacity to other parties, so as to allow alternative use of the bands of spectrum associated with specific transponders. Potential bidders could be any FCC licensee that could make transponder capacity available in, for example, either the C-band or Ku-band, as discussed further below. Satellite operators could offer capacity created by launching new satellites in vacant orbital slots and/or by relinquishing some or all of their existing capacity.
81. At the time of any incentive auction, could satellite customers or earth stations in their own right be eligible to offer capacity? For example, could they make available capacity through mechanisms such as substituting services (
e.g.
fiber) to fulfill their capacity needs, reducing the amount or quality of programming distributed, or using greater compression to reduce the capacity required to carry a given amount of programming or data? C-band capacity lost due to the reduced amount of available spectrum and that was not relinquished in the reverse auction by C-band satellite operators, could be repacked onto replacement capacity for the remaining lives of those lost transponders. This would compensate C-band licensees for their lost capital investments, but not for the loss of their spectrum. The amount of C-band spectrum reallocated could be determined by the reverse auction in combination with a forward auction for cleared spectrum. Adapting the approach of the broadcast incentive auction, the amount cleared could be the largest amount for which forward auction revenues exceed the cost of repacking the remaining C-band services plus any other compensation,
e.g.,
for the loss of spectrum, and the cost of running the auction. The Commission seeks comment on a capacity auction and whether such a mechanism could be used to create flexible use in the band.
82. Several commenters propose that Ku-band capacity could be utilized for C-band services. Other commenters raise the concern that Ku-band capacity is not a reliable replacement spectrum for C-band services. The Commission seeks comment on Ku-band capacity as a replacement for C-band, including as an alternative for infrequent, portable, or more temporary uses such as for breaking news or live sporting events. The Commission also seeks comment on how to define capacity for purpose of this approach. What capacity definition meets the needs of such an auction? Depending on the band, what adjustments would be appropriate to ensure a unit of capacity in the band is comparable with a C-band unit of capacity? Would comparable communication capacity be defined in
terms of throughput, reliability, and operating costs?
83. Advocates for a capacity auction should specifically discuss the Commission's legal authority as well as implementation details and options. For example, could the Commission use its general incentive auction authority to hold a capacity auction? Which parties should be allowed to participate in the reverse auction? Is there a way for end users to participate and, if so, how would their costs be compensated? Would this approach incentivize bidders to make the appropriate tradeoffs among inputs such as compression technology and bandwidth in producing capacity? How could a capacity auction be designed to allocate capacity efficiently over time? Would this require the reverse auction to establish separate prices for capacity in each year? Would capacity need to be defined as packages of capacity at specified dates, and would a combinatorial auction be needed to determine auction winners and prices?
84. The Commission seeks comment on the applicability of § 647 of the Open-market Reorganization for the Betterment of International Telecommunications Act (ORBIT Act) to a capacity or other auction mechanism. The Commission tentatively concludes that the prohibition is not applicable here, as any auctioned spectrum would be used for a new domestic terrestrial service, and the spectrum capacity auction does not propose to assign by competitive bidding orbital locations or spectrum used for the provision of international or global satellite communications services. The Commission also tentatively concludes that the participation in an incentive auction by Ku-band operators to provide spectrum capacity to C-band operators would not violate the ORBIT Act, because this would not constitute an “assignment” of satellite spectrum, because the Ku-band operators would only be giving up some of their licensed spectrum capacity, rather than ceding their actual licenses. The Commission seeks comment on this tentative conclusion and invite commenters to discuss the ORBIT Act's application to any proposed auction mechanism.
85. The Commission also invites comment on other novel incentive auction mechanisms under the Commission's general incentive auction authority. Commenters should provide data on the costs and benefits associated with any proposed approach along with other helpful technical or procedural details. Commenters should also address the potential costs and benefits of an incentive-auction approach for consumers and businesses in rural and underserved communities, as well as any economic impact on small businesses, and they should discuss any rules or procedures that could be implemented to ensure that the needs of these communities and businesses are adequately addressed.
c. Alternative Mechanisms
86. The Commission also seeks comment on approaches that combine various elements of the mechanisms discussed above, as well as other mechanisms for transitioning all or part of the 3.7-4.2 GHz band for wireless broadband use. Commenters offering sequential alternatives should address the circumstances under which one method of transitioning the band would end and a subsequent one would begin. Are any conditions necessary to prevent one approach from precluding later alternatives?
87. In response to the
Mid-Band NOI,
T-Mobile proposed a hybrid approach that would combine elements of an incentive auction and the market-based approach. Under this proposal, a consortium of satellite operators (similar to the Transition Facilitator discussed above) and potential wireless bidders would participate in a phased auction process with both forward and reverse auction components. First, the Commission would conduct a simultaneous or near simultaneous auction of the band on a geographic basis to establish the initial price per area. Second, in those areas where satellite operators were all willing to clear all 500 megahertz at the prices established in the initial phase, the spectrum would be sold and these areas would be deemed “cleared” for flexible terrestrial wireless use. The Commission would then determine an appropriate amount of the remaining spectrum to reserve for satellite use and the forward and reverse auction processes would repeat until a Commission-determined amount of spectrum has been cleared. Although T-Mobile proposes that auction revenues would be split between the federal government and the satellite operators, with the latter responsible for end-user relocation costs as applicable, the Commission tentatively concludes there could be statutory barriers to this aspect of the proposal, and seek comment.
88. The Commission seeks comment on whether T-Mobile's proposal, or a variant of this proposal, would solve or ameliorate the three economic problems discussed above. As discussed, there is a legal aspect to the problem of FSS satellite operators' incentives to reduce the amount of spectrum for repurposing because the Commission's incentive auction authority requires at least two competing participants in the reverse auction. Would T-Mobile's proposal, or a variant of that proposal, comply with the requirement that an incentive auction have two competing licensees in the reverse auction, as well as other requirements associated with the Commission's general incentive auction authority?
89. The Commission seeks comment on whether a hybrid approach that combines elements of the approaches discussed above would strike a balance between incumbent and new entrant interests. If the Commission decides to clear and auction the entire band, but reserve some of the band for satellite use in certain areas, what is the minimum amount that should be cleared for flexible wireless use? Would the minimum amount differ based on geographic area? Should the Commission consider auctioning a majority of the band, versus the entire band, and if so, what would be the appropriate amount of spectrum to be cleared under such an approach? How can the Commission ensure that the band is transitioned in a timely manner? Should a backstop approach be triggered by a FSS operator's failure to clear the band in a timely manner? Is this the right balance, or is there a better way that traditional relocation could be used as a backstop approach to any hybrid mechanism? Additionally, would this approach allow the Commission to meet its statutory requirements under its general incentive auction authority?
90. The Commission asks commenters to provide data on the costs and benefits associated with any hybrid approach over other possible or suggested methods. If the Commission adopted a split-revenue approach, under which revenue would be split between the federal government and the satellite operators, how would those funds be distributed? Are there are legal obstacles to such an approach? Commenters should also address the potential costs and benefits of any hybrid or alternative approach for consumers and businesses in rural and underserved communities, as well as any economic impact on small businesses, and discuss any rules or procedures that could be implemented to ensure that the needs of these communities and businesses are adequately addressed. Commenters should provide complete proposals to the extent technically and economically feasible.
2. More Intensive Point-to-Multipoint Fixed Use
91. In connection with the Commission's proposals above to reform the full-band, full-arc earth station coordination policy, the Commission seeks comment on rule changes to Part 101 to allow point-to-multipoint FS use of the 3.7-4.2 GHz band and invite parties to offer alternative rules or requirements that will allow for the more intensive point-to-multipoint FS use of the band. In doing so, the Commission seeks comment on how permitting fixed wireless would affect the possible future clearing of the band for flexible use and the use of the band for satellite operations. The Commission seeks to protect incumbent FSS earth stations from harmful interference and avoid disruption to existing operations in the band. Accordingly, the Commission seeks comment on the impact that point-to-multipoint use would have on the flexibility of FSS earth stations to modify their operations in response to technical and business needs. The Commission emphasizes that—under the proposals in this
NPRM
—point-to-multipoint would operate on a secondary basis
vis-à-vis
FSS in any part of the band in which FSS continues to operate during a transition period to accommodate repacking and, thereafter, on a frequency-coordinated basis to protect actual FSS operations.
92.
Channel Plan.
—The Commission seeks comment on amending § 101.101 to permit point-to-multipoint FS in some portion of the 3.7-4.2 GHz band. The Commission seeks further comment on amending the existing channel plan for FS in the band (paired 20 megahertz channels for frequency division duplex (FDD)) to allow time division duplex (TDD) on unpaired 20 megahertz channels. The Commission asks commenters to address interference concerns between FDD and TDD, explain how, or if, they could coexist in the portion of the band not being used for flexible use, and discuss coordination and interference rules that must apply if both were to be permitted. Should the Commission allow licensees to aggregate contiguous 20 megahertz channels up to a maximum of 160 megahertz of bandwidth? To the extent a licensee has 40 megahertz of unconstructed spectrum in a licensed service area, should the Commission require construction before allowing the licensee to acquire additional spectrum in the licensed service area? The Commission invites alternative proposals with specific discussion of the costs and benefits as to each. The Commission also seeks comment generally on the technical improvements to allow for better band utilization.
93. The Commission seeks comment on authorizing point-to-multipoint FS service, on a primary basis, in some portion of the 3.7-4.2 GHz band that does not become available for flexible use. The Commission proposes that flexible use licensees would operate in the lower segment of the band (starting at 3.7 GHz) and, if additional spectrum is cleared in the 3.7-4.2 GHz band, it would be relatively easy and cost-effective to expeditiously deploy more flexible use in the lower segment of this band that has been cleared and is contiguous to the spectrum for which flexible use is already licensed. The Commission also seeks comment as to whether, regardless of how much spectrum becomes available for flexible use in the near term, to make available for licensed point-to-multipoint use up to 160 megahertz (
e.g.,
4.04-4.2 GHz) to accommodate a transition from FSS to flexible use working-up from 3.7 GHz. Alternatively, the Commission seeks comment on making available for point-to-multipoint use 40 megahertz, 100 megahertz or up to 320 megahertz.
94.
Service Area of Each Point-to-Multipoint FS Access Point.
—The Commission seeks comment on the best approach to define a point-to-multipoint FS access point service area. The Broadband Access Coalition requests frequency coordinated, site-specific license areas, defined as a circle designated by a specified radial distance from a center point. Should the Commission define a service area based on a specified geographic access point location and maximum radius? As an alternative, should the Commission consider coverage arc sector(s) (
e.g.,
0°N to 30°) around the access point location and specified radii, and what should such coverage arcs be based on (
e.g.,
antenna beamwidth)? If a maximum radius around an access point is specified, should the Commission adopt a single value for all access points or values relative to whether the access point is in densely populated or rural areas? For example, the Broadband Access Coalition proposes 10 kilometers for densely populated areas and 18 kilometers for rural areas. If the Commission allows different radii based on area population density, what threshold should the Commission use to differentiate between densely populated, rural, and other areas? Should the definition of “rural” for these purposes be the definition used for the E-Rate program? If based on a population density, should the population be based on residents or businesses, or perhaps some combination of both? Should this information be based on the most current available U.S. Census database at the time of the license application? Is there some other metric that would be better suited to determining the appropriate maximum radius limit? The Commission seeks comment on variations of these approaches, as well as those of alternatives that might not necessarily be limited to circles, arcs, or population density.
95.
Frequency Coordination and Interference Protection.
—The Commission seeks comment on technical requirements for frequency coordination between point-to-multipoint FS applicants and licensees and FSS under Part 25 and point-to-point FS, if they are grandfathered or otherwise remain in the band, under part 101. Under the Commission's current rules, the technical aspects of coordination between FSS and terrestrial operations are based on Appendix 7 of the International Telecommunication Union (ITU) Radio Regulations and certain recommendations of the ITU Radiocommunication Sector and the technical aspects of coordination between terrestrial licensees are based on Telecommunications Industry Association's Telecommunications System Bulletin (TSB) 10-F or other procedures generally following acceptable good engineering practices. The Commission asks parties to comment on how either of the above or other standards, such as those developed by the European Telecommunications Standards Institute (ETSI) or another organization, may be applicable or adaptable to point-to-multipoint FS operations in the 3.7-4.2 GHz band. The Commission also seeks comment on whether there are interference protection criteria set forth in other parts of the Commission's rules that may be adapted to protect FSS earth stations from interference by point-to-multipoint operations in the portion of the 3.7-4.2 GHz band that does not become available for flexible use. Are there technical operating characteristics of point-to-multipoint equipment, such as power levels, that would require us to adopt different values to protect FSS earth stations from interference by point-to-multipoint operations? The Commission asks that commenters be specific in addressing the technical requirements for coordination.
96. The Commission seeks comment on allowing a point-to-multipoint FS applicant to coordinate each access point by sector based on the radius
around the geographic coordinates of the site, the antenna characteristics (
e.g.,
beamwidth), and a maximum number of client devices to be deployed within a specific distance from the access point. Should point-to-multipoint FS applicants be required to submit frequency coordination for each access point, including geographic coordinates of the access point, frequency range, power and antenna characteristics, service area limits, maximum number of future authorized client devices, and the power and antenna characteristics of individual client devices? How will prior coordination be achieved for point-to-multipoint access points when the location, height, and technical characteristics of the client devices in the access point service area are not available at the time of access point coordination? If some probability of location/height is assigned for the maximum number of client locations in order to develop an interference profile for purposes of coordination, the resulting interference predictions will have some associated probability of interference occurrence; in that case should point-to-multipoint licensees be able to add up to the maximum number of client devices without independently coordinating each client device? Should client devices be subject to additional technical limitations, such as minimum directional antenna requirements, EIRP limits, or other criteria to limit their interference potential? Should the maximum number of client devices be specified for each channel? The Commission seeks comment on the above proposals and, whether, if a point-to-multipoint FS applicant cannot successfully coordinate a geographic service area, it should be permitted to coordinate client devices on a path-to-path basis. Parties should address the technical requirements of the above, offer alternatives, and specifically detail the costs and benefits of each proposal.
97. The Commission also seeks comment on the administrative process that should apply to the coordination of point-to-multipoint FS operations in the band. Under the current rules, the administrative aspects of the coordination process are set forth in § 101.103(d) in the case of coordination of terrestrial stations with earth stations and in § 25.203 in the case of coordination of earth stations with terrestrial stations. What modifications to §§ 101.103(d), 25.203, or to another rule must be made to govern the administrative process that will apply to the coordination of point-to-multipoint FS operations with FSS and point-to-point FS, if grandfathered or remain in the band, and the coordination of FSS and point-to-point FS, if grandfathered or remain in the band, with point-to-multipoint FS operations in the band? The Commission seeks comment on subjecting point-to-multipoint FS applicants to an expedited coordination process with mandatory electronic notification and response. Should an expedited process, if adopted, govern coordination that occurs beginning 90 days after the adoption of final rules published in the
Federal Register
? The Commission also seeks comment on any other modifications to the Commission's rules with respect to the coordination administrative process that would reduce the economic impact of the proposed rule changes on small entities.
98. Additionally, the Commission seeks comment on the possibility of adopting an automated coordination process for point-to-multipoint FS applications. There is a lack of a consensus in the record as to when, or if, the Commission will be in a position to propose and adopt rules for automated coordination of point-to-multipoint FS applications in the 3.7-4.2 GHz band. The Broadband Access Coalition contends that automated coordination should not be the same as the Spectrum Allocation Server (SAS) system for licensing in the 3.5 GHz band. However, the Broadband Access Coalition believes that the existing process can be modified and automated over time to incorporate real-time, real-world FSS protection criteria and enable coordination between and among point-to-point FS, if grandfathered or remain in the band, and point-to-multipoint FS based on FSS, point-to-point FS and point-to-multipoint FS industry standards of protection criteria to be developed by affected stake-holders. Several commenters including IEE DySPAN, OTI &PK, and Federated, support using a spectrum access database similar to the sharing system used below 3.7 GHz for the Citizens Broadband Radio Service. Google offers another variant contending that a lightweight database supported authorization framework would enable the efficient deployment of fixed broadband access (FBA) systems. However, the satellite industry and content providers have strong objections to more intensive use of the 3.7-4.2 GHz by FS and have raised very specific concerns over the lack of proven methods for spectrum sharing with more intensive fixed use in this band. Satellite operators also raise concern about the ability of point-to-multipoint systems to quickly remedy interference when it is identified or to accommodate FSS earth stations when they change frequencies. The Commission seeks comment on the above. The Commission also asks that, given the lack of consensus, parties continue to work together to offer a more widely supported proposal for the Commission to consider.
99.
Power Limits.
—The Commission seeks comment on adopting power limits for point-to-multipoint FS operations in the 3.7-4.2 GHz band. The Commission existing rules for FS provide power limits based on the link length. With point-to-multipoint FS service areas, individual links between access points and client devices will vary in length. Should the Commission apply a rule to point-to-multipoint FS links specifying a minimum path length, similar to those specified for point-to-point FS links in § 101.143 or is some other variation of this rule more applicable to point-to-multipoint FS operations? What should the Commission's power limits be for point-to-multipoint FS service? The Broadband Access Coalition has proposed a 50 dBm EIRP limit and a maximum conducted power of 1 Watt. Should the access point EIRP be scalable with bandwidth? Likewise, should client devices be limited to 50 dBm EIRP regardless of bandwidth? If not scalable, how do changes in bandwidth impact frequency coordination? Should the Commission apply the emission limits set forth in § 101.111 to point-to-multipoint FS operations in this band, or would some other limits be more appropriate to protect adjacent-band operations? The Broadband Access Coalition anticipates that point-to-multipoint FS systems would be able to meet existing Part 101 out-of-band emission limits, without modification, but the Commission seeks comment as to this issue. The Commission also invites comment on other proposals. The Commission notes that the adjacent 4.2-4.4 GHz band is allocated to the aeronautical radionavigation service on a primary basis and that, at WRC-15, the 4.2-4.4 GHz band was also allocated to the aeronautical mobile (R) service on a primary basis in all ITU Regions with use reserved for WAIC systems. WAIC systems are onboard short range wireless systems that will replace substantial portions of aircraft wiring. These systems increase aircraft safety by providing dissimilar redundancy in communications links between aircraft systems. The Commission solicits comment on the needed out-of-band emission limit required to protect the
aeronautical radionavigation service in the 4.2-4.4 GHz band.
100.
Antenna Standards.—
The Commission asks parties to provide detailed technical comments as to antenna standards that should apply to point-to-multipoint FS operations in the 3.7-4.2 GHz band. Section 101.115 of the Commission's rules specifies the maximum beamwidth, minimum antenna gain and radiation suppression envelope for FS antennas in this band. How should these antenna standards be modified to accommodate the range of antennas typically used in point-to-multipoint applications? The Broadband Access Coalition Petition proposes that, unlike point-to-point FS licensees subject to § 101.115, point-to-multipoint FS licensees be permitted to use any antenna in the 3.7-4.2 GHz band that meets the minimum performance requirements for access points and client devices. Specifically, the Broadband Access Coalition Petition proposes that a point-to-multipoint FS licensee would be required to specify the gain; azimuth; polarization; height; azimuth and elevation half-power beamwidths; and tilt (
e.g.,
−10 degrees) for sectorized antennas and gain, height and any electrical tilt for omni-directional antennas. Should the Commission specify a minimum radiation suppression at some angle from the edge of the main beam for sectorized antennas? The Commission seeks comment on the above and invite parties to offer alternative proposals. What are the relative costs and benefits for each proposal? How would each proposal affect other users in the band or provide mechanisms to address interference?
101.
Client Devices.
—The Commission seeks comment on whether the Commission should require directional antennas on outdoor point-to-multipoint client devices and if so what should those antenna standards be? Would antenna standards for client devices make coordination easier? The Commission asks that commenters address the minimum antenna gain and minimum suppression from main beam centerline. Should client devices be limited to outdoor antennas only and permanently affixed at the client location? Should the Commission allow portable indoor client devices, and should such devices be allowed under point-to-multipoint or flexible use rules? If the Commission permits portable client devices with non-directional antennas, how will this impact the access point service area frequency coordination with incumbent licensees?
102.
Frequency Agility and Radio Capabilities.
—The Commission seeks comment on whether the Commission should require point-to-multipoint FS radios (both access points and client devices) to be frequency agile and thus capable of operating across the 3.7-4.2 GHz band or allow radios to be agile over 3.7-4.2 GHz so long as the flexible use portion of the band is locked out and be able to accommodate any 20 megahertz channel assignment? The Broadband Access Coalition requests that licensed point-to-multipoint radios (both access points and client devices) be frequency agile and thus capable of operating across the entire 3.7-4.2 GHz band, and accommodate any 20 megahertz channel assignment. Additionally, should the Commission require that client devices be capable of modifying channel and bandwidth assignment when prompted by the associated access point? Should access points be software upgradable to communicate with future automated database and client devices to be capable of following instructions from associated access point to change channels and bandwidth, as necessary? The Commission seeks comment on how such requirements might be implemented in regulations, or whether any such features may instead be developed by manufacturer technical standards and/or multi-stakeholder interest groups.
103.
Construction.
—The Commission seeks comment on the construction deadlines and notifications that should apply to point-to-multipoint FS licensees in the 3.7-4.2 GHz band. Should the Commission require point-to-multipoint FS licensees to build out, within 12 months, and operate at least one access point and at least five client radios in licensed areas or lose protection for the service area? If a point-to-multipoint FS licensee fails to meet the above requirements, should the Commission allow links already in service from that access point to maintain coordinated protection on an individual, path-by-path basis to protect existing customers served by those links? In addition, the Commission encourages commenters to consider the economic impact on consumers and businesses in rural communities and areas that are unserved or underserved by current broadband providers, as well as any economic impact on small businesses. The Commission asks parties to comment on this proposal, offer alternative proposals, and discuss the relative costs and benefits for each proposal.
104. Additionally, § 101.141(a)(3)(ii) requires that “traffic loading payload shall exceed 50 percent of payload capacity within 30 months of licensing.” The Commission recognizes that the minimum traffic loading payload requirement in § 101.141(a)(3)(ii) was designed for symmetrical traffic and that IP traffic is often asymmetrical. Should the Commission therefore not adopt a requirement for point-to-multipoint FS licensees or do parties have alternative proposals for us to consider?
105.
Equipment Access/RF Exposure.
—Section 101.131(a) requires that “[t]he equipment at the operating and transmitting positions must be so installed and protected that it is not accessible to, or capable of being operated by, persons other than those duly authorized by the licensee.” The Broadband Access Coalition states that client radios providing low power point-to-multipoint services will operate from residential premises and will not present a radiofrequency (RF) hazard because, when operated at full power, the RF exposure keep-out zone for point-to-multipoint client radios operating at the proposed maximum EIRP level is less than 0.6 meters (2 feet). The Commission anticipates that client devices would likely be mounted in such a way as to provide a good connection back to the access point, free from obstructions within the transmission path, and so while such an installation may not strictly comply with the access restriction requirement in the Commission's rules, it is possible that other regulatory examples or analogies may apply to point-to-multipoint situations where home subscriber devices are involved. For example, fixed wireless licensees with home-installed consumer equipment are generally required to attach a label to transceiver antennas that: (1) Provides adequate notice regarding potential radiofrequency safety hazards,
e.g.,
information regarding the safe minimum separation distance required between users and transceiver antennas; and (2) references the applicable FCC-adopted limits for radiofrequency exposure specified in § 1.1310. The Commission seeks comment on whether a similar requirement for point-to-multipoint client devices may be a preferred alternative to § 101.1310 of the Commission's rules. In addition, the Commission seeks comment on the possibility that there may be any other potential use cases, such as wireless routers or other types of devices, that may require separate consideration for the purposes of equipment authorization and RF exposure compliance. The Commission notes that
all transmitters must comply with the Commission's exposure limits and requirements of §§ 1.1307(b), 1.1310, 2.1091, and 2.1093 of the Commission's rules, as applicable.
106.
ULS Requirements.
—What technical data should point-to-multipoint FS licensees be required to provide in ULS? The Commission notes that the Broadband Access Coalition requests in its petition that the applicant's frequency coordination should correspond to the specific equipment and antenna orientation the applicant selects, and so the Commission seeks comment on whether at least that same information used for frequency coordination should be entered into the Commission's licensing database. At a minimum should licensees be required to provide the antenna gain, azimuth, polarization, height, half-power beamwidth (azimuth and elevation), and tilt (
e.g.
−10°) for each access point by sector?
3. Service Rules for Flexible Use
107. The scope of the service rules adopted herein will vary depending on the mechanism ultimately adopted by the Commission to expand flexible use in the band. For convenience, the Commission refers to this indeterminate amount of spectrum as the Mid-Band Flexible Use or “MBX” spectrum. Assuming that the Commission ultimately decides to add a mobile, except aeronautical mobile, allocation and to make some or all of the 3.7-4.2 GHz band available for flexible use, in this section the Commission proposes or seeks comment on band plan, licensing and operating and technical rules for the 3.7-4.2 GHz band spectrum that becomes available for terrestrial mobile and fixed flexible-use. The Commission proposes to license this spectrum under the Commission's flexible-use, part-27 rules that permit licensees to provide any fixed or mobile service consistent with the allocations for this spectrum, subject to rules necessary to prevent or minimize harmful interference. The Commission seeks comment on this approach. The Commission also seeks comment, however, on whether there are any services,
e.g.,
Internet of Things, that would not qualify under § 603(a)(2)(B) of the MOBILE NOW Act, which requires the Commission to identify 100 megahertz below 6000 MHz for use on exclusive, licensed basis for commercial mobile use, pursuant to the Commission's authority to implement such licensing in a flexible manner?
a. Band Plan
108.
Block Sizes.
—The Commission seeks comment on appropriate block size to promote efficient and robust use of the band for next generation wireless technologies, including 5G. Currently, the 3.7-4.2 GHz band is licensed terrestrially by 20 megahertz channels for fixed use. However, the current channelization of the band should not affect the Commission's consideration of alternate band plans. Therefore, the Commission seeks comment on the appropriate block size(s) to best accommodate the fullest range of terrestrial wireless services.
14
Would 20 megahertz blocks be appropriate for the wireless technologies that are likely to be deployed in this band? Should the Commission allow blocks to be aggregated to provide greater capacity where needed? Or, would licensing the 3.7-4.2 GHz band in larger block sizes (
e.g.,
50-100 megahertz) better support 5G services while promoting competition? Would a mix of channel sizes improve efficiency and flexibility for a wider variety of users in the band?
14
The use of 20 megahertz blocks will enable transmission efficiencies achieved by 5G voluntary standards, including Long-Term Evolution (“LTE”) derivatives. Vivint Wireless Comments at 3.
109. The Commission also seeks comment on whether the appropriate block sizes should be affected by the specific transition mechanism adopted by the Commission. For example, if the Commission adopts a market-based approach, the Commission seeks comment on allowing parties to define block sizes in their agreements. In this regard, would a default block size that could be aggregated and disaggregated help facilitate a market-based process? Commenters should discuss and quantify the costs and benefits of their proposals.
110.
Spectrum Block Configuration.
—The Commission generally has licensed bands that support mobile broadband services on a paired basis but specified the downlink and uplink bands only when necessary to avoid harmful interference,
e.g.,
to Federal incumbents. The Commission recognizes that the 3.7-4.2 GHz spectrum that becomes available for flexible use could be configured in any number of paired or unpaired modes. The Commission therefore seeks comment on a range of options. If the Commission adopts an unpaired approach, are any administrative measures necessary to keep track of how spectrum blocks are being used? The Commission invites comment on what approach to take, and the costs and benefits of particular approaches. Above, the Commission discusses various mechanisms for expanding flexible use in all or part of the band. The Commission asks proponents of the various approaches described whether there are issues specific to this section and their preferred approach.
111.
Use of Geographic Licensing.
—Consistent with the Commission's approach in several other bands used to provide fixed and mobile services, the Commission proposes to license the 3.7-4.2 GHz MBX spectrum on an exclusive, geographic area basis. Geographic area licensing provides flexibility to licensees, promotes efficient spectrum use, and helps facilitate rapid assignment of licenses, utilizing competitive bidding when necessary. The Commission seeks comment on this approach, including the costs and benefits of adopting a geographic area licensing scheme. In the event that a party does not support using geographic licensing, it should explain its position, describe what type of licensing scheme it supports and identify the costs and benefits associated with its alternative licensing proposal.
112.
Service Areas.
—The Commission seeks comment on the appropriate service areas for any flexible use licenses. In determining the appropriate geographic license size, the Commission must consider several factors, including: (1) Facilitating access to spectrum by both small and large providers; (2) providing for the efficient use of spectrum; (3) encouraging deployment of wireless broadband services to consumers, especially those in rural areas and Tribal lands; and (4) promoting investment in and rapid deployment of new technologies and services. In light of these statutory considerations, the Commission asks commenters to discuss and quantify the economic, technical, and other public interest considerations of licensing on a PEA, county, nationwide, or other basis. The Commission asks commenters to address the costs and benefits of their recommended licensing approach.
113. The Commission also seeks comment on a licensing approach for the Gulf of Mexico. In AWS-1, AWS-3, AWS-4, and the H Block, the Commission issued separate licenses for the Gulf of Mexico. In the Upper 700 MHz band, however, the Commission included the Gulf of Mexico in larger service areas. Commenters who advocate a separate service area or areas to cover the Gulf of Mexico should discuss what boundaries should be used, and whether special interference protection criteria or performance requirements are necessary due to the unique radio propagation characteristics and antenna siting challenges that exist for Gulf licensees.
114. The Commission also seeks comment on whether the service areas should be affected by the specific transition mechanism adopted by the Commission. For example, if the Commission adopts a market-based approach, the Commission seeks comment on allowing parties to define service areas in their agreements. In this regard, would a default service-area size smaller than the contiguous 48 states that could be aggregated and disaggregated help facilitate a market-based process? If the Commission adopts an overlay auction, the Commission seeks comment on issuing a single nationwide license, or alternatively issuing licenses for five regions: (1) The contiguous 48 states and the Gulf of Mexico, (2) Alaska, (3) Hawaii, (4) Puerto Rico and the U.S. Virgin Islands, and (5) Guam, the Northern Mariana Islands, and American Samoa. Commenters should discuss and quantify the costs and benefits of their proposals.
115. The Commission also seeks comment on a licensing approach for the Gulf of Mexico. In AWS-1, AWS-3, AWS-4, and the H Block, the Commission issued separate licenses for the Gulf of Mexico. In the Upper 700 MHz band, however, the Commission included the Gulf of Mexico in larger service areas. Commenters who advocate a separate service area or areas to cover the Gulf of Mexico should discuss what boundaries should be used, and whether special interference protection criteria or performance requirements are necessary due to the unique radio propagation characteristics and antenna siting challenges that exist for Gulf licensees.
b. Licensing and Operating Rules
116. The Commission seeks to afford licensees the flexibility to align licenses in the 3.7-4.2 GHz band with licenses in other spectrum bands governed by Part 27 of the Commission's rules. The Commission therefore proposes that licensees in the 3.7-4.2 GHz band comply with licensing and operating rules that are applicable to all Part 27 services, including assignment of licenses by competitive bidding, flexible use, regulatory status, foreign ownership reporting, compliance with construction requirements, renewal criteria, permanent discontinuance of operations, partitioning and disaggregation, and spectrum leasing. The Commission seeks comment on this approach and ask commenters to identify any aspects of the Commission's general Part 27 service rules that should be modified to accommodate the particular characteristics of the 3.7-4.2 GHz band. The Commission asks proponents of the various mechanisms described above whether there are issues specific to this section and their preferred approach.
117. In addition, the Commission seeks comment on service-specific rules for the 3.7-4.2 GHz band, including eligibility, mobile spectrum holdings policies, license term, performance requirements, renewal term construction obligations, and other licensing and operating rules. In addressing these issues, commenters should discuss the costs and benefits associated with these proposals and any alternatives that commenters propose.
118.
Eligibility.
—Consistent with established Commission practice, the Commission proposes to adopt an open eligibility standard for licenses in the 3.7-4.2 GHz band. The Commission seeks comment on this approach. Specifically, the Commission seeks comment on whether adopting an open eligibility standard for the licensing of the 3.7-4.2 GHz band would encourage efforts to develop new technologies, products, and services, while helping to ensure efficient use of this spectrum. The Commission notes that an open eligibility approach would not affect citizenship, character, or other generally applicable qualifications that may apply under the Commission's rules. Commenters should discuss the costs and benefits of the open eligibility proposal on competition, innovation, and investment. Above, the Commission discusses various mechanisms for expanding flexible use in all or part of the band. The Commission asks proponents of the various approaches described above whether there are issues specific to this section and their preferred approach. Finally, a person who has been, for reasons of national security, barred by any agency of the Federal Government from bidding on a contract, participating in an auction, or receiving a grant is ineligible to hold a license that is required by 47 U.S.C. Chapter 13 (the Spectrum Act) to be assigned by a system of competitive bidding under § 309(j) of the Communications Act. In the event that the Commission assigns licenses through competitive bidding, the Commission proposes to apply this ineligibility provision to the 3.7-4.2 GHz band.
119.
Mobile Spectrum Holdings.
—Spectrum is an essential input for the provision of mobile wireless services, and to implement provisions of the Communications Act, the Commission has developed policies to ensure that spectrum is assigned in a manner that promotes competition, innovation, and efficient use.
120. The Commission seeks comment generally on whether and how to address any mobile spectrum holdings issues involving 3.7-4.2 GHz spectrum to meet the Commission's statutory requirements and ensure competitive access to the band. Similar to the Commission's approach in the
2017 Spectrum Frontiers Order and FNPRM,
the Commission proposes not to adopt a pre-auction bright-line limit on the ability of any entity to acquire spectrum in the 3.7-4.2 GHz band through competitive bidding at auction. Since such pre-auction limits may unnecessarily restrict the ability of entities to participate in and acquire spectrum in an auction, the Commission is not inclined to adopt such limits absent a clear indication that they are necessary to address a specific competitive concern, and the Commission seeks comment on any specific concerns of this type.
121. The Commission also seeks comment on whether this band should be included in the Commission's spectrum screen, which helps to identify markets that may warrant further competitive analysis, for evaluating proposed secondary market transactions. If the Commission does determine that an auction is appropriate, the Commission seeks comment on reviewing holdings on a case-by-case basis when applications for initial licenses are filed post-auction to ensure that the public interest benefits of having a threshold on spectrum applicable to secondary market transactions are not rendered ineffective. The Commission seeks comment on whether and how the similarity of this spectrum to spectrum currently included in the screen should be factored into the Commission's analysis, including the suitability of 3.7-4.2 GHz spectrum for use in the provision of mobile telephony or broadband services. Commenters should discuss and quantify any costs and benefits associated with any proposals on the applicability of mobile spectrum holdings policies to 3.7-4.2 GHz spectrum. The Commission discusses above various mechanisms for expanding flexible use in all or part of the band. The Commission asks proponents of the various approaches described above whether there are issues specific to this section and their preferred approach. For example, should the Commission impose limits on the amount of spectrum acquired by one party through a market-based mechanism?
122.
License term.—
The Commission seeks comment on a 15-year term for licenses in the 3.7-4.2 GHz band.
15
The Commission believes that 15 years will afford licensees sufficient time to achieve this significant buildout obligation. The Commission seeks comment on the costs and benefits of this proposal. In addition, the Commission invites commenters to submit alternate proposals for the appropriate license term, which should similarly include a discussion on the costs and benefits.
15
The Communications Act does not specify a term limit for wireless radio services licenses. The only statutory limit on license terms is eight years for licenses in the broadcast services.
See
47 U.S.C. 307(c)(1);
see also
47 CFR 73.1020(a).
123.
Performance requirements.—
The Commission establishes performance requirements to ensure that spectrum is intensely and efficiently utilized. The Commission has applied different performance and construction requirements to different spectrum bands based on considerations relevant to those bands. The Commission continues to believe that performance requirements play a critical role in ensuring that licensed spectrum does not lie fallow.
124. Accordingly, considering the unique characteristics of this band, and to ensure that licensees begin providing service to consumers in a timely manner, the Commission seeks comment on adopting specific quantifiable benchmarks as an important component of its performance requirements. The Commission seeks comment on requiring a 3.7-4.2 GHz band licensee, relying on mobile or point-to-multipoint service in accordance with the Commission's part 27 rules, to provide reliable signal coverage and offer service to at least forty-five (45) percent of the population in each of its license areas within six years of the license issue date (first performance benchmark), and to at least eighty (80) percent of the population in each of its license areas within 12 years from the license issue date (second performance benchmark). For licensees relying on point-to-point service, the Commission seeks comment on requiring them to demonstrate within six years of the license issue date (first performance benchmark) that they have four links operating and providing service, either to customers or for internal use, if the population within the license area is equal to or less than 268,000. If the population within the license area is greater than 268,000, the Commission seeks comment on requiring a licensee relying on point-to-point service to demonstrate it has at least one link in operation and providing service per every 67,000 persons within a license area. The Commission seeks comment on requiring licensees relying on point-to-point service to demonstrate within 12 years of the license issue date (final performance benchmark) that they have eight links operating and providing service, either to customers or for internal use, if the population within the license area is equal to or less than 268,000. If the population within the license area is greater than 268,000, the Commission seeks comment on requiring a licensee relying on point-to-point service to demonstrate it is providing service and has at least two links in operation per every 67,000 persons within a license area. The Commission seeks comment on whether in order to be eligible to be counted under the point-to-point buildout standard, a point-to-point link must operate with a transmit power greater than + 43 dBm.
16
16
In
Spectrum Frontiers,
the Commission defined a “fixed point-to-point link” as “a radio transmission between point-to-point stations (as already defined in part 30), where transmit power exceeds + 43 dBm.” Under this definition, stations or devices transmitting using lower power levels will not count towards the number of fixed links required under the performance metric. Licensees whose networks include such low-power connections may rely on another part of their network to demonstrate buildout (
e.g.,
mobile area coverage or higher-power fixed backhaul links).
See 2017 Spectrum Frontiers Order and FNPRM,
32 FCC Rcd at 11008-09, paragraph 66 through 68.
125. The Commission believes that 12 years will provide sufficient time for any 3.7-4.2 GHz licensee to meet the proposed coverage requirements. The Commission anticipates that after satisfying the 12-year second performance benchmark, a licensee will continue to provide reliable signal coverage, or point-to-point links, as applicable, and offer service at or above that level for the remaining three years in the proposed 15-year license term prior to renewal. Establishing benchmarks before the end of the license term will ensure continuity of service over the license term, which is essential to the Commission's evaluation under the Commission's renewal standards.
126. The Commission also seeks comment on whether the proposals discussed above represent the appropriate balance between license-term length and a significant final buildout requirement. The Commission seeks comment on the proposed buildout requirements and any potential alternatives. The Commission, for example, seeks comment on alternative methodologies for measuring population coverage requirements in the Gulf of Mexico. Above, the Commission discusses various mechanisms for expanding flexible use in all or part of the band. The Commission asks proponents of the various approaches described above whether there are issues specific to this section and their preferred approach. The Commission also seeks comment on whether small entities face any special or unique issues with respect to buildout requirements such that they would require certain accommodations or additional time to comply. Finally, commenters should discuss and quantify how any supported buildout requirements will affect investment and innovation, as well as discuss and quantify other costs and benefits associated with the proposal.
127.
Internet of Things (IoT) Performance Requirements.
—While the Commission proposes performance benchmarks based on population coverage applicable for a range of fixed and mobile services, the Commission recognizes that 3.7-4.2 GHz licenses have flexibility to provide services potentially less suited to a population coverage metric. In particular, licensees providing IoT-type fixed and mobile services may benefit from an alternative performance benchmark metric, and the Commission seeks comment on the appropriate metric to accommodate such service offerings. As the Commission did in
Spectrum Frontiers,
the Commission acknowledges that some IoT-type services may have difficulty meeting the population-based metrics that the Commission proposes for fixed and mobile services. In
Spectrum Frontiers,
the Commission modified its existing part 30 rules to adopt a specific definition of “fixed point-to-point link,” which includes the use of point-to-point stations as already defined in part 30 and is based on power level. This definition is intended to separate “traditional” point-to-point links from the sensor and device connections the Commission anticipates will be part of new Internet of Things networks in these bands. This definition applies to a network of fixed sensors or smart devices operating at low power over short distances. The Commission seeks comment on applying the same framework here and invite commenters to suggest new metrics that will accommodate innovative services in mid-band spectrum. The Commission also seeks comment on how relatively lower power point-to-point operations at or below a transmit power of + 43 dBm should be required to meet the buildout rules for 3.7-4.2 GHz licensees.
128. The Commission seeks additional comment on what metric it should adopt to accommodate IoT services, while recognizing the difficulty of crafting an IoT-specific metric, especially while the relevant technologies and use cases are still being developed. For example, a performance metric based on geographic area coverage (or presence) could allow for networks that provide meaningful service but deploy along lines other than residential population. Consistent with the Commission's approach above seeking comment on a first and second performance benchmark, the Commission seeks comment on the following metrics as an option for MBX-spectrum licensees to fulfill their buildout requirements: geographic area coverage of 35 percent of the license area at the first (six-year) performance benchmark, and geographic area coverage of 65 percent of the license area at the second (12-year) performance benchmark. The Commission also seeks comment on an alternative requirement of presence in 35 percent of subset units of the license area, such as census tracts, counties, or some other area at the first performance benchmark, and presence in 65 percent of subset units at the second benchmark. A standard requiring presence in subset units of a license area could accommodate deployments, such as sensor networks, that are not designed to provide mobile or point-to-multipoint area coverage, and for whom calculating “coverage of 65 percent of the area” would therefore not be a meaningful standard. Licensees would demonstrate compliance with this metric through a showing of the equipment or deployments that are part of a network that is actually providing service, either to external customers or for internal uses.
129. The Commission suggests these levels of geographic coverage as an attempt to maintain parity between the requirements in these metrics and the requirements of its earlier proposal based on population coverage.
17
The Commission seeks comment on these coverage levels, including any suggestions of alternative levels of coverage that might be more appropriate. The Commission also emphasizes that any metric it adopts to accommodate IoT services would, like the population coverage and fixed link metrics ultimately adopted, be available to any MBX-spectrum licensee. While the Commission suggests an additional metric in order to facilitate the deployment of IoT and other innovative services, there would be no requirement that a licensee build a particular type of network or provide a particular type of service in order to use whatever metric the Commission ultimately adopts. Above, the Commission discusses various mechanisms for expanding flexible use in all or part of the band. The Commission asks proponents of the various approaches described above whether there are issues specific to this section and their preferred approach. The Commission strongly encourages stakeholders to fully develop a record on this issue.
17
In most license areas, the residential population is unevenly distributed. In those areas, building a network covering 65% of the geographic area would require more intensive deployment than one covering 65% of the population, suggesting that a lower percent coverage requirement for geographic area could be appropriate.
130.
Penalty for Failure to Meet Performance Requirements.
—Along with performance benchmarks, the Commission seeks to adopt meaningful and enforceable penalties for failing to meet the benchmarks. The Commission seeks comment on which penalties will most effectively ensure timely build-out. Specifically, the Commission proposes that, in the event a 3.7-4.2 GHz MHz licensee fails to meet the first performance benchmark, the licensee's second benchmark and license term would be reduced by two years, thereby requiring it to meet the second performance benchmark two years sooner (at 10 years into the license term) and reducing its license term to 13 years. The Commission further proposes that, in the event a 3.7-4.2 GHz licensee fails to meet the second performance benchmark for a particular license area, its authorization for each license area in which it fails to meet the performance requirement shall terminate automatically without Commission action.
131. The Commission proposes that, in the event a licensee's authority to operate terminates, the licensee's spectrum rights would become available for reassignment pursuant to the competitive bidding provisions of § 309(j). Further, consistent with the Commission's rules for other licenses, including AWS-1, AWS-3, AWS-4 and H Block, the Commission proposes that any 3.7-4.2 GHz licensee who forfeits its license for failure to meet its performance requirements would be precluded from regaining the license.
132.
Compliance Procedures.
—In addition to compliance procedures applicable to all Part 27 licensees, including the filing of electronic coverage maps and supporting documentation, the Commission proposes that such electronic coverage maps must accurately depict the boundaries of each license area in the licensee's service territory. If a licensee does not provide reliable signal coverage to an entire license area, the Commission proposes that its map must accurately depict the boundaries of the area or areas within each license area not being served. Further, the Commission proposes that each licensee also must file supporting documentation certifying the type of service it is providing for each licensed area within its service territory and the type of technology used to provide such service. Supporting documentation must include the assumptions used to create the coverage maps, including the propagation model and the signal strength necessary to provide reliable service with the licensee's technology. The Commission seeks comment on the Commission's proposal. The Commission also seeks comment on whether small entities face any special or unique issues with respect to the transition such that they would require additional time to comply.
133.
Renewal Term Construction Obligation.
—In addition to, and independent of, the general renewal requirements contained in § 1.949 of the Commission's rules, which apply to all Wireless Radio Services (WRS) licensees, the Commission also seeks comment on application of specific renewal term construction obligations to 3.7-4.2 GHz licensees.
134. The
WRS Renewal Reform FNPRM
proposed to apply rules adopted in that proceeding to all flexible geographic licenses. Given the Commission's proposal to license this band on a geographic basis for flexible use, any additional renewal term construction obligations proposed in the
WRS Renewal Reform FNPRM
also would apply to licenses in the 3.7-4.2 GHz band. The Commission seeks comment on whether there are unique characteristics of the 3.7-4.2 GHz band that might require a different approach than the various proposals raised by the
WRS Renewal Reform FNPRM.
For example, while the vast majority of existing wireless radio services have 10-year license terms, here the Commission seeks comment on a 15-year license term for the 3.7-4.2 GHz band. Do any of the Commission's proposals for this band, such as potentially longer license terms, necessitate a more tailored approach than the rules of general applicability proposed in the
WRS Renewal Reform FNPRM
? For instance, should the Commission requires buildout to 85 percent of the population by the end of second license term? Commenters advocating rules specific to the 3.7-4.2 GHz band should address the costs and benefits of their proposed
rules and discuss how a given proposal will encourage investment and deployment in areas that might not otherwise benefit from significant wireless coverage. Above, the Commission discusses various mechanisms for expanding flexible use in all or part of the band. The Commission asks proponents of the various approaches described above whether there are issues specific to this section and their preferred approach. The Commission seeks comment on whether to require an applicant deploying IoT applications in the 3.7-4.2 GHz band to exceed its original construction metric by an additional five percent in its next full renewal term.
135.
Competitive Bidding Procedures.
— The Commission seeks comment above on the types of licenses for the 3.7-4.2 GHz band that would best serve the public interest. In the event that the Commission accepts mutually exclusive applications for licenses in the band, the Commission will grant the licenses through a system of competitive bidding, consistent with the Commission's statutory mandate. Accordingly, the Commission seeks comment on a number of proposals relating to competitive bidding for licenses for spectrum in this band, including the costs and benefits of those proposals.
136. Consistent with the competitive bidding procedures the Commission has used in previous auctions, the Commission proposes that the Commission would conduct any auction for licenses for spectrum in the 3.7-4.2 GHz band in conformity with the general competitive bidding rules set forth in part 1, subpart Q, of the Commission's rules. Specifically, the Commission proposes to employ the part 1 rules governing competitive bidding design, designated entity preferences, unjust enrichment, application and certification procedures, payment procedures, reporting requirements, and the prohibition on certain communications between auction applicants. Under this proposal, such rules would be subject to any modifications that the Commission may adopt for its part 1 general competitive bidding rules in the future. In this
NPRM,
the Commission seeks comment on general application of the part 1 competitive bidding rules to any auction of 3.7-4.2 GHz licenses. The Commission also seeks comment on whether any of the Commission's part 1 rules would be inappropriate or should be modified for an auction of licenses in this frequency band. In particular, the Commission seeks comment on the following proposals for bidding credits for designated entities in this band. As with other flexible use licenses in recent years, the Commission proposes in this band to adopt bidding credits for the two larger designated entity business sizes provided in the part 1 rules. The Commission also proposes to offer rural service providers a designated entity bidding credit for licenses in this band. Commenters addressing these proposals should consider what details of licenses in the band may affect whether designated entities will apply for them. The Commission seeks comment on new or revised rules that would be necessary to implement an incentive auction if the Commission adopted that approach. Would a tailored version of the rules adopted for the reverse auction portion of the broadcast incentive auction be appropriate?
c. Technical Rules
137.
Power Limits for Fixed and Base Stations.
—The current rules for AWS-1, AWS-3 and AWS-4 limit base station power in non-rural areas to 1640 watts EIRP for emission bandwidths less than one megahertz and to 1640 watts per MHz EIRP for emission bandwidths greater than one megahertz and they double these limits (3280 watts EIRP or 3280 watts/MHz) in rural areas. The same limits apply to broadband PCS stations. There are a few services that have a power limit of 2000 Watts per MHz, most notably, the recent 600 MHz band. In the Commission's experience t
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