Giant leaps at the FCC?

Chairman Pai’s theme for the July 10, 2019 meeting is “A Giant Leap For 5G.”  The focus will be on taking important steps towards advancing 5G coverage and capacity.  The FCC plans to accomplish this by opening up the 2.5 GHz band for 5G as well as conducting a high-band spectrum auction.  The meeting will also concentrate attention on closing the digital divide by considering a Notice of Proposed Rulemaking and Declaratory Ruling covering what the FCC calls “multiple tenant environments,” or MTEs. The FCC is also looking to modernize other regulations that are “holding back” the deployment of next-generation networks and services.   The FCC will consider an item that will eliminate unnecessary pricing regulation of a subset of lower-speed “business data services” — middle-mile services known as “transport” services — offered by price-cap ILECs.  Additionally, the FCC is looking to take the next step in its ongoing proceeding to create a Connected Care Pilot Program within the Universal Service Fund. 

Let’s take a closer look at some of the top items. 

Transforming the 2.5 GHz Band for 5G

An essential part of enabling 5G services is making more spectrum available for the commercial marketplace.  The reforms in this Report and Order (R&O) would make valuable mid-band spectrum available for 5G by transforming the regulatory framework governing the 2.5 GHz band (2496-2690 MHz).  Much of this band, which is prime spectrum for 5G, has been unused for more than twenty years.

Among other things, the R&O will:

• Make any remaining unassigned 2.5 GHz spectrum available for commercial use via competitive bidding immediately following the completion of the Tribal priority filing window.
• Adopt construction deadlines so that new licensees build out this midband spectrum.
• Eliminate outdated rules preventing this spectrum from being put to its highest and best use, including restrictions on who may be a licensee, restrictions on how licensees must use the spectrum, and restrictions on how licensees may lease spectrum to other entities.
• Leave unaffected the terms of any private contractual arrangement or any provisions in existing leases that provide a licensee with airtime, equipment, or capacity—incumbent licensees are simply given more flexibility to put existing licenses to their best use.

Procedures for 5G Incentive Auction

The FCC has established rules for Upper Microwave Flexible Use Service (UMFUS) licenses in several spectrum bands above 24 GHz to promote the development of 5G wireless, the Internet of Things (IoT), and other advanced spectrum-based services for the benefit of the public.  This Public Notice would adopt application and bidding procedures to be used for the Auction 103, incentive auction of UMFUS licenses in the Upper 37 GHz, 39 GHz, and 47 GHz bands.  Auction 103 will be the FCC’s third auction of high-band 5G spectrum, its second incentive auction, and its largest auction of spectrum in history, and is scheduled to start on December 10, 2019.

Among other things, the Public Notice will:

• Adopt bidding procedures for the clock and assignment phases of Auction 103, which are consistent with the procedures used for the recently completed auction of licenses in the 24 GHz band (Auction 102). 
• Auction 103’s clock phase will allow bidding on generic blocks in two categories (Upper 37 GHz/39 GHz and 47 GHz) in each PEA in successive clock bidding rounds.
• Auction 103’s assignment phase will allow bidding for frequency-specific license assignments, while ensuring contiguous block assignments.
• Adopt bidding credit caps of $25 million for small businesses and $10 million for rural service providers for Auction 103.

Promoting Access to Connected Care Services

The FCC is proposing to adopt a Notice of Proposed Rulemaking for a potential Connected Care Pilot program which would:

• Establish a three-year, $100 million Pilot to be funded by the USF that would help health care providers defray the costs of broadband service to enable low-income patients and veterans to access telehealth services;
• Seek comment on who should participate in the Pilot, including eligible health care providers and broadband service providers; and
• Seek comment on the FCC’s legal authority to establish a Connected Care Pilot.

Improving Competitive Broadband Access to Multiple Tenant Environments

The FCC believes that an important part of closing the digital divide is promoting high-speed broadband access for the millions of Americans who live and work in MTEs (apartments, condominiums, and office buildings).  To provide service to tenants, communications service providers must have access to the building.  The FCC seeks to remedy this.  First, it proposes to adopt a Declaratory Ruling that would: clarify that the FCC welcomes state and local efforts to increase access to MTEs, so long as those efforts are consistent with federal policy; and preempt an outlier San Francisco ordinance to the extent it requires the sharing of in-use wiring in MTEs and thus deters broadband deployment.

The accompanying Notice of Proposed Rulemaking would:

• Seek comment on actions the FCC could take to accelerate the deployment of next-generation networks and services within MTEs. 
• Seek comment on the impact that revenue sharing agreements between building owners and broadband providers, exclusivity agreements regarding rooftop facilities, and exclusive wiring arrangements have on broadband competition and deployment.

 Regulation of Price-Cap ILEC BDS Services

In 2017, the FCC eliminated regulation of many legacy BDS services provided by price-cap ILECs.  One aspect of that decision, relating to TDM transport, failed to survive judicial review, and was remanded back to the FCC for further proceedings. 

The Report and Order on Remand affirms the FCC’s previous findings that widespread and ever-increasing competition in the supply of BDS transport justifies relieving price cap carriers of ex-ante pricing regulation and tariffing of their BDS TDM transport services nationwide.

In addition, the item contains a Memorandum Opinion and Order that would:

• Grant price-cap carriers forbearance from the DS1 and DS3 transport unbundling requirements of the Communications Act in wire centers where competitive fiber networks are located within a half-mile of the wire center (i.e. a Tier 2 or 3 wire center that triggers the unbundling obligation).
• Condition this forbearance on: (1) a six-month transition period during which competitive local exchange carriers can place new orders for DS1 and DS3 unbundled transport; and (2) a concurrent three-year transition period to enable these carriers to arrange for alternative transport options.

We may not be going back to the moon any time soon but hopefully the FCC’s actions will spur the growth of 5G.