The FCC took further steps to lay the groundwork for auctions of high-band millimeter wave (mmW) licenses later this year with the adoption of a Report and Order (R&O) in its “Spectrum Frontiers” proceeding setting forth additional rules for previously-identified mmW channels in the 24 GHz and 37 GHz bands. As part of that effort, the agency also approved a Further Notice of Proposed Rulemaking (FNPRM) which seeks comment on proposals for making additional spectrum in the 26 GHz and 42 GHz bands available for fifth-generation (5G) wireless broadband and other flexible use services.

Earlier this year, the FCC announced that it would commence auctions in November of mmW channels in the 28 GHz (i.e., 27.5-28.55 GHz) band that would constitute the first spectrum sale to be conducted by the agency since the conclusion of the broadcast incentive auction last year. The FCC also confirmed that auctions of spectrum in the 24 GHz (i.e., 24.25- 24.45 GHz and 24.75-25.25 GHz) band would follow “immediately after” the 28 GHz sale. Together, both auctions would encompass 1.55 GHz of available spectrum with licenses to be designated as the Upper Microwave Flexible Use Service (UMFUS).

Following on the release of a public notice in April which seeks comment on application and bidding procedures to be used for these auctions, yesterday’s R&O enacts a spectrum sharing framework which—in the words of an FCC press release—is intended “to allow use of a portion of the 24 GHz band for terrestrial wireless operations and fixed satellite service (FSS) earths stations.” The R&O also establishes a band plan which carves out six 100 MHz channels for licensing in the lower 37 GHz (i.e., 37-37.6 GHz) band. Among other things, the R&O also (1) prescribes operability requirements for the 24 GHz band, (2) allows UMFUS licensees to choose a geographic area performance metric “which may be suitable for Internet of Things-type deployments,” and (3) eliminates spectrum aggregation rules which limit the amount of mmW spectrum which any entity may acquire at auction in the 28 GHz, 37 GHz, and 39 GHz bands. (Under the new rules, the FCC will rely instead on a case-by-case review of spectrum aggregated by individual UMFUS licensees that will take place after the auctions are concluded.) Meanwhile, the FNPRM solicits stakeholder input on how channels in the 26 GHz band can be made available “for flexible fixed and mobile use” and how 42 GHz band spectrum can be used for commercial wireless broadband services. The FNPRM also seeks comment on proposed coordination mechanisms in the lower 37 GHz band between “either two or more non-federal entities or between federal and non-federal entities.” 

Although the item was approved by a 4-0 vote, Commissioner Jessica Rosenworcel, the FCC’s lone Democrat, issued a partial dissent on grounds that the decision “to limit any pre-auction limits for high-band spectrum and replace them all with post-auction case-by-case review misses the mark.” Nevertheless, as FCC Chairman Ajit Pai proclaimed that adoption of the R&O puts “more spectrum on the table” for 5G use, Commissioner Michael O’Rielly observed that the item “rightfully takes steps to bring our consideration of the 37 GHz band to conclusion” as he voiced hope that the FCC will soon establish a timeline for “the highly-anticipated 37 GHz auction and the remaining 39 GHz licenses.”