The Federal Communications Commission (FCC) recently released a Notice of Proposed Rulemaking (Notice) requesting comments on its proposal to expand the availability of in-flight Wi-Fi to airplane passengers traveling in the contiguous U.S. The FCC proposes to create an air-ground mobile broadband service operating on a secondary, non-interference basis with Fixed-Satellite Service (FSS) Earth-to-space communications in the 14.0-14.5 GHz band.1 The proposed service would allow travelers to connect wirelessly to a full range of communications services while flying over the contiguous U.S. In 2011, Qualcomm proposed an air-ground mobile broadband system similar to that proposed in the Notice. Comments are requested 45 days after the Notice is published in the Federal Register, and Reply Comments will be due 75 days after publication. Federal Register publication has not yet occurred as of the date of this Advisory.

  1. Spectrum Sharing and Secondary Allocation in the 14.0-14.5 GHz Band

The FCC’s plan takes advantage of spatial diversity to allow spectrum sharing in the 14.0-14.5 GHz band, which is allocated on a primary basis to the FSS as an uplink band for geostationary orbit FSS operations. Spatial diversity allows two or more services to share spectrum by covering different areas or by positioning antennas to point in different directions.

Secondary allocation will protect FSS in the band from harmful interference. As a secondary allocation, the air-ground mobile broadband receiving station would be subject to interference from satellite earth stations with primary status. The FCC seeks comment on how the proposed service would affect authorized federal operations in the band and vice versa. The FCC also seeks comment on proposed coordination requirements with other secondary and permissive services that operate in segments of the 14.0-14.5 GHz band, such as the Space Research Service in the 14.0-14.2 GHz band, Radio Astronomy Service Stations in the 14.47-14.5 GHz band, and other fixed and mobile federal secondary services.

  1. Regulatory Framework and Status

The FCC seeks comment on whether the air-ground mobile broadband service should be regulated under a new subpart within Part 27 of the FCC rules or under Part 22, which governs public mobile services, including existing air-ground services in the 800 MHz band. Alternatively, the FCC asks whether the proposed service should be regulated under some other existing part of the FCC rules or a newly created rule part. The FCC asks that commenters discuss the costs and benefits of their proposed licensing approach.

The FCC also seeks comment on its proposal to classify the proposed service as a commercial mobile radio service (CMRS). Existing air-ground mobile broadband service in the 800 MHz band is classified as CMRS. However, the FCC asks commenters to consider whether licensees should be permitted to specify their regulatory status (as CMRS, Private Mobile Radio Service, or both; and common carrier or non-common carrier services, or a combination thereof).

  1. Licensing and Operating Rules: Geographic Areas, Spectrum Blocks, Ownership Restrictions, License Terms, Performance Requirements, Etc.

The Notice proposes to adopt a geographic area licensing scheme (as opposed to a site-by-site model) that permits the filing and acceptance of mutually exclusive applications that, if accepted, would be resolved through competitive bidding consistent with Section 309(j) of the Communications Act. As such, the FCC seeks comment on a proposal to conduct any auction for 14.0-14.5 GHz licenses in conformity with the general competitive bidding rules set forth in Part 1, Subpart Q of the FCC’s rules, consistent with the competitive bidding procedures used in previous auctions.

Assuming that the FCC adopts a geographic area approach for licensing the band, the FCC seeks comment on the size of the service area and proposes licensing the spectrum on a nationwide basis. Nonetheless, the Notice proposes to allow partitioning and disaggregation in air-ground mobile broadband licensees in the 14.0-14.5 GHz band. In addition, the Notice proposes to extend the FCC’s spectrum leasing rules and policies to the 14.0-14.5 GHz band.

The FCC seeks comment on how to apportion the spectrum, whether in two 250 megahertz licenses, one 500 megahertz license, or another approach.

The Notice proposes applying foreign ownership reporting requirements consistent with those applicable to Parts 22 (Public Mobile Services), 24 (Personal Communications Services), and 27 (Miscellaneous Wireless Communications Services) of the FCC’s rules and restrictions.

The FCC also seeks comment on the proposed open eligibility standard and any spectrum aggregation or competitive concerns.

In order to maintain consistency across wireless services, the Notice proposes a 10-year term for licenses in the proposed service. In addition, the Notice proposes a concurrent 10-year substantial service performance requirement and seeks comment on this performance deadline, the proposal that a license will automatically terminate on the date the construction or coverage period expires if the licensee fails to comply with the performance requirements, interim performance or reporting requirements, and license renewal criteria. The FCC also seeks comment on a proposed safe harbor that would allow a licensee to satisfy substantial service by constructing and operating base stations that provide service to all routes within the contiguous U.S. between 50 or more airports classified as large or medium hubs (service to large and medium hubs would account for approximately 88 percent of primary airport traffic, and the top 50 airports would account for approximately 83 percent of primary airport traffic).

  1. Technical Rules

The Notice proposes technical rules to protect the primarystatus FSS from harmful interference and to promote spectrum sharing with other users in the band. The proposed rules are intended to foster flexibility for potential future airground mobile broadband licensees.

  1. International Aircraft and Airspace

The Notice proposes rules to protect against harmful interference to services in other countries, particularly Canada. The FCC seeks comment on how to address and mitigate any potential interference that may affect Canada and other countries. The FCC also seeks comment on how to coordinate with other countries that may establish air-ground mobile broadband-like services in the future.

Lastly, the Notice proposes that non-U.S. registered aircraft be allowed to contract with licensees for air-ground mobile broadband equipment and service.

  1. Communications Assistance to Law Enforcement Act (CALEA)

The Notice notes that because CALEA, which was enacted to preserve law enforcement agencies’ ability to conduct electronic surveillance, applies to facilities-based broadband Internet access providers and VoIP providers, it will apply to air-ground mobile broadband licensees.