Updates on U.S. Mid-Band Spectrum Policy

Updates on U.S. Mid-Band Spectrum Policy

Grace Koh Former U.S. Ambassador and Representative to World Radiocommunication Conference 2019

Mid-band spectrum (i.e., spectrum between 3 and 24 GHz) is considered critical to the rollout of a robust 5G network, and most attractive to the mobile network operators is the range between 3 and 6 GHz.  Often called the “sweet spot” of 5G spectrum, the frequencies are high enough to deliver fast data rates but also low enough to cover larger areas than millimeterwave spectrum. The premier wireless industry association, GSMA, notes that operators should have access to at least 80-100 megahertz of spectrum in the mid-band range, noting that 3.3-3.8 GHz appear to the bands favored by most commercial operators. 

But COVID-19 has added an additional layer of pressure to the thorny task of balancing spectrum assignments.  For one, it has added a level of urgency to the debate, as the pandemic has forced virtualization of many aspects of our daily lives – work, education, medicine, social interactions. Network demand for some applications increased as much as 200% in the United States during the month of March, applying a stress test, as some experts have called it, to the broadband industry. Governments are contemplating legislation and funding to help stimulate an economic recovery, including covering the gaps in the broadband networks. Many policymakers have looked to the promise of ubiquity, reliability, and security of 5G networks, but numerous questions continue to dog policymakers as they consider how to get to 5G quickly. In the United States, lawmakers are considering funding for research, data collection, and deployment, but competing concerns will continue to arise, also pushed by COVID’s effects. The pandemic has exposed and made clear the choices struck between resiliency and efficiency. These choices and other considerations in managing the COVID-19 will affect the timeline for the United States government’s efforts to put mid-band spectrum into the hands of commercial mobile network operators (MNOs). 

In the United States, the debate over mid-band spectrum exemplifies this process of assessing priorities, as incumbents seek to protect their valuable services and MNOs seek to bring the promise of 5G. The domestic discussions over mid-band assignments for 5G are certainly intense in the United States.  The United States is currently taking three approaches to the mid-band spectrum sought by the commercial mobile network operators. The current on spectrum bands 3.7-4.2 (the C band), 3.55-3.7 GHz (the Citizens Broadband Radio Service band or CBRS band), and spectrum used by primarily the Department of Defense in 3.1-3.55 GHz. 

In the C-band, regulators are proposing full relocation and exclusive licenses of commercial spectrum currently allocated to satellite operators who currently use this band for to beam content to video and audio broadcasters, cable systems, and other content distributors. Relocation and exclusive licensing is the approach preferred by the mobile network industry. The Federal Communications Commission (FCC) has struck a deal, in which satellite operators are expected to relocate from the lower portion of the band to 4.0-4.2 GHz.  Relocation will require launches of new satellites and filters for earth stations generating costs of up to $9.7 billion. Those costs would be covered by the proceeds from the auction, which would make 280 Megahertz of spectrum available to mobile network operators. The FCC Chairman has proposed that the auction begin December 8. Under the timeline, the spectrum must be cleared by December 5, 2025, though the regulations provide incentives for earlier relocation. Both Intelsat and SES, the two major incumbents in the spectrum, have agreed to the timeline and plan established by the FCC. 

Intelsat also reminded the FCC that the COVID-19 pandemic will also affect the timeline for relocation. The pandemic may impact the availability of physical crews, equipment vendors, and permitting entities. As such, Intelsat recommended a waiver process to accommodate. Several smaller satellite companies have filed for legal review of the FCC order, but experts do not believe that a stay of the FCC order is likely. 

In the CBRS band, the FCC established a hybrid sharing and exclusive license system, consisting of three tiers of access and authorization framework.  Certain government users and fixed satellite services will have Tier 1 access, which protects them from harmful interference from any other user. The FCC then plans to allow Tier 2 users to have Priority Access Licenses (PAL), which will ensure exclusive use within a small geographic area.  The small geographic area allows for smaller private networks that might support industrial control systems within a manufacturing plant or electric grid. The FCC expects to auction PALs at the end of June. These Tier 2 users may not interfere with Tier 1 users and must accept interference from Tier 1 users.  Tier 3 users, or General Authorized Access users, may use the spectrum in compliance with the rules and must accept interference from any other users. Mobile network operators prefer exclusive licenses and larger geographic areas, but the system of shared access offers faster access to the spectrum.  

Resistance to the auction for PAL licenses came from quarters arguing that CBRS provided broadband coverage in the rural areas through fixed wireless services. At least one large cable company in the United States has experimented with filling out its coverage using fixed wireless over CBRS spectrum. However, concerns regarding resiliency or coverage in the wireless areas appear to have been mitigated by the promise of MNOs using that spectrum to build stronger networks. The auction is expected to commence on June 25; rules have been established, and it does not appear that the pandemic will impact the timeline or the expectations for the auction. 

As for the remaining spectrum band, the United States government continues to discuss whether and how to repurpose that spectrum, which is largely assigned to use by the Department of Defense.Congress directed the National Telecommunications and Information Administration (NTIA) to study the feasibility of allowing licensed and/or unlicensed shared access to some or all of 3.1-3.55 GHz and submit a report by March 23, 2020. That report remains forthcoming though NTIA has issued a study indicating that time-based sharing with certain military radars may be feasible in the 3.45-3.55 GHz band. 

NTIA has issued a document outlining the considerations and guidance for its review; the guidance document notes that the 3.1-3.55 GHz band supports a significant number of services operated by the Department of Energy, Department of Energy, Department of Homeland Security, the Air Force, the Army, the Navy, the Marine Corps, and the Department of Commerce. At this point, the discussion on repurposing this band remains behind closed doors, but the private sector continues to push for repurposing of spectrum through the press and quiet lobbying. The U.S. Department of Defense has put up strong resistance to the notion of repurposing the spectrum for exclusive licenses to MNOs but has noted that spectrum sharing frameworks can potentially work. The Ligado example may prove instructive on how this debate plays out. While Ligado’s assignment involves commercial and shared spectrum, the resistance from government agencies – Departments of Defense and Transportation – has become very public, with the agencies seeking assistance from Congress.  

These competing priorities come to bear more heavily in spectrum policy, as the governments consider how best to weather the pandemic. While the necessity of strong broadband networks – as well as the promise of 5G networks – has become very apparent, emergency preparedness is also top of mind for the policymakers. 

One additional thought on the impact of current domestic mid-band discussions on the World Radiocommunication Conference 2023 (WRC-23) item on mid-band spectrum identification for 5G. 

Due to the work already completed during WRC-15, administrations are already well on their way to assigning mid-band spectrum to 5G services. One analysis finds that an average of 382 megahertz of mid-band spectrum will assigned to 5G use by the end of this year in most administrations, before WRC-23 established further regulations for mid-band identification for 5G. In fact, 5G deployments will be more than experimental by the time WRC-23 rolls around. Operators in Australia, China, Germany, Italy, Qatar, Spain, South Korea, the United Kingdom, among others, have launched 5G networks using mid-band spectrum. 

This could mean that most of the battles over the assignment of mid-band frequencies will have occurred domestically before WRC-23, hopefully avoiding some of the more contentious discussions at the Conference. At the very least, the data gathered from real world deployment could have the effect of disciplining the work conducted in the ITU-R study groups. Or at least one can hope. 

Grace Koh was most recently the U.S. Ambassador to the International Telecommunication Union’s  World Radiocommunication Conference 2019 in Sharm El Sheikh, Egypt, where she led the 125-member delegation in negotiating successful outcomes for U.S. spectrum and satellite policy. Before representing the United States at WRC-19, Ms. Koh was a partner in the Telecom Law Group at DLA Piper LLC, where she advised clients on regulatory and congressional issues on unmanned aerial vehicles, merger, Universal Service Fund and other matters.  She came to DLA Piper LLC after serving as Special Assistant to the President for Technology, Telecom, and Cyber-Security Policy.  In this role, she advised the President and other senior White House staff on all matters pertaining to technology policy.  Koh previously served as Deputy Chief Counsel to the Subcommittee on Communications and Technology of the Energy and Commerce Committee in the U.S. House of Representatives. Her primary role was to advise the chairmen and committee members on policy and legal issues arising in the telecommunications and technology sectors. She was previously Policy Counsel at Cox Enterprises, Inc.’s Public Policy Office, working on technology policies affecting the enterprise’s Internet, cable, and broadcast properties. Koh came to Cox Enterprises after working in the communications group at Willkie Farr & Gallagher LLP. She holds a B.A. from Yale University and a J.D. from the University of Pennsylvania Law School.

Both industry and government stakeholders respect her leadership, fairness, and collegiality. As a 15-year veteran of Washington, D.C., Ms. Koh has earned a reputation for substantive regulatory expertise as well as strategic political advice on effecting change at the Administration and in Congress. 

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