On July 14, 2016, the Federal Communications Commission voted unanimously—and unusually quickly—to open up a substantial amount of spectrum in frequency bands above 24 GHz for use by mobile and fixed wireless network providers.  The Commission also adopted flexible service rules governing the use of such spectrum to protect both new and incumbent licensees and to promote deployment and competition.  As a result of the decision, which has been largely praised by the industry, the United States became the first country in the world to allow providers to use spectrum in these bands to deliver so­called “fifth generation” (“5G”) mobile and fixed wireless voice and data services, enhancing its position as a world technology leader.  Below, we discuss the importance of, and key points from, the Commission’s Order and Further Notice of Proposed Rulemaking.  See In re Use of Spectrum Bands Above 24 GHz for Mobile Radio Services, GN Docket No. 14­ 177, Report and Order and Further Notice of Proposed Rulemaking (July 14, 2016) (“Order”).

Background

As any Pokemon Go player can tell you, few things are as important to modern life as mobile services, and the availability and performance of those services depend, in turn, on wireless spectrum.  Data flows to support online gaming, video streaming, and other high­data applications have increased dramatically in recent years, and increasing demand for data is expected to continue as devices and services proliferate, including the emergence of the “Internet of Things.”  See, e.g.In re Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, GN Docket No. 15­ 191, 2016 Broadband Progress Report, ¶¶ 20­21 (Jan. 28, 2016).  To handle this data explosion, the industry is developing standards to govern 5G technologies, which have the promise to deliver enhanced speeds (possibly up to 10 Gigabits per second), lower latency, and improved efficiency in terms of both spectrum and energy use.  See Order, ¶¶ 7­9.  The successful deployment of 5G networks could allow mobile networks to match some wireline speeds, thereby facilitating true intermodal competition.  See FCC, Press Release, FCC Takes Steps to Facilitate Mobile Broadband and Next Generation Wireless Technologies in Spectrum Above 24 GHz (July 14, 2016).  For these networks to become a reality, however, providers and other entities in the ecosystem need access to additional spectrum.

Spectrum Allocation

High­frequency spectrum is potentially valuable for 5G networks because its relatively limited reach renders it well suited to provide high­capacity, location­specific services in populated areas.  See Order, ¶¶ 6­7.  For years, however, the bands of spectrum in frequencies above 24 GHz were thought ill­suited to mobile use due to propagation losses, and were allocated instead to support satellite and fixed microwave applications.  See id. ¶¶ 1, 6.  Recent advances in network technologies prompted the Commission to issue a Notice of Inquiry in October 2014 and subsequently to initiate a rulemaking in October 2015 to consider freeing some or all of these bands of spectrum for mobile, fixed wireless, or shared use.  See generally In re Use of Spectrum Bands Above 24 GHz for Mobile Radio Services, GN Docket No. 14­177, Notice of Proposed Rulemaking, 30 FCC Rcd 11878 (Oct. 22, 2015).

At the heart of the rulemaking were several bands of spectrum that the Commission considered to have characteristics that made them appropriate for reconsideration: the 27.5–28.35 GHz band (“28 GHz Band”), the 38.6–40 GHz band (“39 GHz Band”), the 37–38.6 GHz band (“37 GHz Band”), and the 64­71 GHz band.  Dozens of commenters—including major providers like AT&T, Verizon, Sprint, and T­Mobile, as well as smaller carriers, equipment manufacturers, and industry groups—filed comments, and the Commission held both a workshop and equipment demonstrations to explore concepts and technologies.  Order, ¶¶ 11, 14.

Ultimately, the Commission decided to license spectrum in the first three bands and to authorize unlicensed use in the fourth, opening up 3.85 gigahertz of newly licensed spectrum and 7 gigahertz of newly available unlicensed spectrum, for a total of nearly 11 gigahertz of new spectrum.  The FCC determined that the characteristics of the first three bands made them attractive for licensed mobile use for many reasons, including contiguous bandwidth, the state of existing research and development, proximity to other bands of licensed spectrum, and global co­primary allocations.  See id. ¶¶ 23, 76, 105.  The Commission also authorized existing holders of spectrum in the 28 GHz and 39 GHz Bands to exercise the full extent of their rights to this spectrum, including mobile use, with the hopes that these licensees will jump start deployment and competition, attracting the interest of possible new entrants.  See id. ¶¶ 38, 41, 86.

Commissioner Rosenworcel referred to the allocation of the 64­71 GHz band for unlicensed use as a “Wi­Fi dividend”—and this band is directly proximate to the 57­64 GHz band, which is already authorized for unlicensed use.  Order at 271.  The Commission thus has created a “14­gigahertz segment of contiguous spectrum . . . to encourage the development of new and innovative unlicensed applications, and promote next­generation high­ speed wireless links with higher connectivity and throughput, while alleviating spectrum congestion from carrier networks by enabling mobile data off­loading.”  Id. ¶ 125.

Finally, the Commission made clear that its efforts in this area are ongoing.  The Order includes a Further Notice of Proposed Rulemaking (“FNPRM”), requesting comment on authorizing fixed or mobile use of spectrum in the following bands: the 24.25–24.45 GHz band together with the 24.75–25.25 GHz band; the 31.8–33.4 GHz band; the 42–42.5 GHz band; the 47.2–50.2 GHz band; the 50.4–52.6 GHz band; and the 71–76 GHz band together with the 81–86 GHz band.  The Commission also requested comment on use of bands above 95 GHz. Id. ¶¶ 5, 370­445.  We expect to see substantial activity on the part of incumbent licensees and spectrum­ hungry providers in the next comment period, which extends through September 30, 2016.

Licensing, Technical, Service, and Aggregation Rules

In order to facilitate use of the newly licensed spectrum, the FCC adopted flexible licensing, technical, and service rules, as well as a modified approach to spectrum aggregation in these Bands.  For example, prompted by commenters, the Commission decided to offer licenses for consistent block sizes (200 MHz) and covering consistent areas (Partial Economic Areas) in the 39 GHz Band—the exclusively private portion of the 37 GHz Band, and adopted consistent technical rules for this spectrum, potentially creating 2.4 gigahertz of spectrum that is amenable to aggregation.  See id. ¶¶ 82, 95, 111, 114, 123.  Parties interested in acquiring spectrum in any of the 28, 37, and 39 GHz Bands should review the other licensing and technical rules in the Order governing, among other things, performance metrics and buildout requirements, power limits, etc.

While wireless providers were winners, incumbent licensees, including federal users and satellite and terrestrial operators, did not go home empty handed.  For example, the Commission created a block within the 37 GHz band that will be available for dynamic shared access between commercial users and federal users.  According to the Commission, this block of spectrum may serve as a “model” for sharing of spectrum for new bands in the future.  See id. ¶ 2.  The Commission also adopted mechanisms to provide flexibility to incumbent satellite operators and predictability to terrestrial operators, with the goal of ensuring not just continuing, but even expanded operations in these bands.  See id. ¶¶ 4, 18.

The Commission also addressed the impact of this additional spectrum on the application of its spectrum aggregation policies.  Id. ¶¶ 4, 178­190.  The FCC will allow licensees to acquire up to 1250 megahertz across the three bands—more than the one­third generally permitted—whether via licensing auctions or secondary­ market transactions.  In the case of the latter, acquisitions that would yield 1250 megahertz or more of this spectrum in a particular county (or counties) could trigger “further competitive analysis” to determine if the transaction is in the public interest, but the Commission otherwise concluded not to include the new spectrum in its “screen,” which generally uses the total amount of spectrum an acquirer holds in particular markets to determine if such analysis is necessary.  See id. ¶¶ 187­89.  The Commission also signaled that it may apply this quasi­screen in the future, including to the bands of spectrum at issue in the FNPRM.  Order, ¶ 491.  And prospective spectrum holders should be aware that the Commission has opened the door to further comments on its spectrum aggregation policies, especially with regard to newly cleared, high­frequency spectrum.

See id. ¶ 491.