FCC Proposes to Make 150 MHz of Spectrum Available for Shared Broadband Through Use of Dynamic Spectrum Access and Sharing Systems

by Davis Wright Tremaine LLP

Yesterday, the Federal Communications Commission (FCC) took steps to make 150 megahertz of spectrum available for shared broadband use by unanimously approving a Further Notice of Proposed Rulemaking (FNPRM) setting forth proposed rules for a new spectrum sharing regime that will make available additional spectrum for carrier-grade small cell deployments, fixed wireless broadband services and general commercial use in the 3.5 GHz Band through the creation of a new Citizens Broadband Service.

This proposal reflects another significant step towards implementation of the spectrum sharing principles articulated in the 2012 report from the President’s Council of Advisors on Science and Technology (the so-called “PCAST” report). Through the use of a three-tiered access and sharing model comprised of federal and non-federal incumbents the FCC intends to facilitate spectrum sharing between different users and uses of the spectrum.

The Citizens Broadband Service was first proposed in a 2012 Notice of Proposed Rulemaking (NPRM). In the NPRM, the Commission proposed a three-tier (Incumbent Access tier, Priority Access tier and the General Authorized Access (GAA) tier), license-by-rule authorization framework that would facilitate opportunistic use of the 3.5 GHz Band while protecting existing incumbent users of the spectrum. Incumbent Access tier users, which include authorized federal and grandfathered fixed satellite service users, would have protection from harmful interference from all other users in the 3.5 GHz Band. Federal users would be further protected from harmful interference by exclusion zones where no other use of the spectrum would be permitted. The Priority Access tier would be limited to certain users with critical quality-of-service needs (such as hospitals, utilities, and public safety entities) and would be authorized to operate with some interference protection in portions of the 3.5 GHz Band at specific locations. Finally, in the GAA tier, users would be authorized to use the 3.5 GHz Band opportunistically within designated geographic areas but would be required to accept interference from Incumbent and Priority Access tier users.

Access to the three tiers would be managed by a Spectrum Access System. This system will consist of a dynamic database (or multiple databases) that incorporate technical and functional requirements necessary to manage access and operation across all three tiers.

Although there is broad support for making the 3.5 GHz Band available for shared broadband use, there are very diverse views of how such shared use should be implemented, especially with regard to the Priority Access tier. The primary issues of contention are whether the Priority Access tier should be limited to critical care and first responder users, and if it not, who should be allowed to use the Priority Access tier and how rights should be assigned for use of the Priority Access tier. Another issue is with the large federal exclusion zones on the coasts that are estimated to exclude 60% of the population and within which non-federal 3.5 GHz operations will be prohibited.

Because of the wide range of proposals submitted by commenters, the FCC released a Public Notice on Nov. 1, 2013, seeking comment on a Revised Framework for the 3.5 GHz Band and also held two public workshops to further explore the technical requirements, architecture, and operational parameters of the proposed Spectrum Access System.

Although the FNPRM has not yet been released, the FCC press release and statements at today’s open meeting indicate that the FNPRM incorporates many aspects of the Revised Framework and concepts raised during the workshops.

Based upon that record, we believe the FNPRM will not modify the originally-proposed Incumbent Access tier, although the FCC seeks comment on limiting the scope of the exclusion zones. However, significant changes are being made to the Priority Access and GAA tiers. Rather than limiting access to certain users in the Priority Access tier, the FCC now proposes to issue priority access licenses, or PALs, to a variety of users, including mobile broadband providers. Each PAL would authorize exclusive use of a single 10 MHz priority access channel per census tract for 1 year and possibly up to 5 years and would be subject to a streamlined auction procedure. PALs could be aggregated across time, channel and geography. The GAA tier would operate under a license-by-rule authorization framework to allow for open flexible access. At all times, fifty percent of the 3.5 GHz band will be reserved for GAA use and GAA users would be allowed to opportunistically use any unused Priority Access channels.

The FNPRM also includes additional technical rule proposals for the Spectrum Access System and baseline standards for devices to prevent harmful interference and efficient use of the spectrum. In addition, as in the NPRM, the FCC proposes to include an additional 50 MHz of spectrum in the 3.5 GHz band for the Citizens Broadband Service.

Additional analysis and information will be available upon release of the FNPRM.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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