The Federal Communications Commission (FCC) and Government Accountability Office (GAO) are examining use of the 10,700-11,700 MHz (11 GHz), 17,700-19,700 MHz (18 GHz) and 21,200-23,600 MHz (23 GHz) spectrum bands as the first steps in a possible reallocation of these bands to licensing through competitive bidding. These bands are used by both private licensees and common carrier licensees for point-to-point microwave services. On June 20, 2012, the FCC issued a Public Notice inviting comment by July 20, 2012, on whether there is a greater need for channels in these bands than can be accommodated with the existing spectrum.

Section 6412 of The Middle Class Tax Relief and Job Creation Act of 2012, P.L. 112-96 (the “Spectrum Act”), requires the FCC and GAO to examine the 11, 18, and 23 GHz bands to determine if they are being used efficiently and to ensure that the Federal Government “receives maximum revenue for such spectrum through competitive bidding.” The FCC must submit a report to Congress by November 22, 2012 on the “rejection rate”  of applications submitted to frequency coordinators or to the FCC for licenses in these bands. The law defines “rejection rate” as the number and percent of applications for common carrier use that were not granted because of lack of availability of spectrum or interference concerns of existing licensees. Section 6412 also requires the GAO to submit a report by the same date on whether there are adequate incentives for efficient use of this spectrum in areas of high demand for common carrier microwave licenses, and to ensure that the Federal Government receives “maximum revenue for such spectrum” through competitive bidding. In conducting its study, GAO is to consider spectrum in adjacent bands that was assigned through competitive bidding and the current and projected “rejection rate” for common carrier licenses.

Section 309(j) of the Communications Act requires the FCC to use auctions to assign licenses in bands where there are “mutually exclusive” applications (i.e., more applications than can be granted with the available spectrum), unless one of the statutory exemptions applies (such as the that band is principally used for “public safety radio services.”) At present, the potential for “mutually exclusive” applications in these point-to-point microwave bands is almost nonexistent because applicants are first required to go through frequency coordination in an effort to find channels that will not interfere with existing licensees or other applicants. By directing the FCC to examine whether some applicants have been foreclosed from obtaining licenses in these bands, it appears that Congress is trying to understand whether auctions are an appropriate means to select from among these “competing” applications.

The present FCC inquiry is focused on common carrier applications as directed by Congress, but other licensees or applicants for the 11, 18, and/or 23 GHz bands may want to file comments by the July 20, 2012 deadline on how the frequency coordination process for these and similar point-to-point microwave bands ensures the most efficient use of the spectrum.