On April 20, 2020, commissioners of the Federal Communications Commission (FCC) voted unanimously to approve a long pending and controversial application by Ligado Networks to repurpose parts of the L-band (1-2 GHz) to support 5G and Internet of Things (IoT) services. This action appears to align with the FCC’s previous efforts to make additional “mid-band” spectrum available for U.S. companies to gain a foothold in the 5G race. One important subtext to the FCC’s decision to move forward is the Trump administration’s stated interest in developing U.S. alternatives to the 5G offerings of Chinese companies, such as Huawei Technologies Co. Ltd.

Background: FCC Spectrum Actions and the 5G FAST Plan

Since 2018, the FCC has initiated a number of spectrum-related actions to pursue a comprehensive strategy designated as the 5G FAST Plan. For example, the agency adopted rules to streamline facilities siting for “small cell” infrastructure to serve as the backbone for 5G networks. It created new forms of experimental licenses for use of frequencies between 95 GHz and 3 THz in order to help “innovators and entrepreneurs” develop 5G technology. It also initiated proceedings to auction and reallocate licenses in the 3.7-4.2 GHz, 24 GHz, 28 GHz, 37 GHz, 39 GHz and 47 GHz bands to support 5G deployment in the U.S.

Ligado Network’s Application: Proposal, Opposition and FCC Approval

Ligado Network’s application proposed modification of its licenses so that it could deploy a low-power terrestrial nationwide network in a portion of the L-band for use by connected smart devices and other IoT sensors. A number of defense-related federal government users of this spectrum have for years opposed the grant of the Ligado application, asserting that this proposed use of the spectrum was inconsistent with federal government use. Nevertheless, the FCC approved this application as a result of the FCC’s finding that “it is in the public interest to grant Ligado’s application while imposing stringent conditions to prevent harmful interference,” according to FCC Chairman Ajit Pai’s announcement when he circulated the draft order on April 16. Attorney General William Barr issued a press release that shared the same sentiment, calling FCC Chairman Pai’s announcement a “swift FCC action on spectrum” that “is essential . . . to keep [the United States’] economic and technological leadership and avoid forfeiting it to Communist China.”

Shortly before the FCC vote approving the Ligado application, parties opposed to this change in spectrum use in the L Band continued to press their view that new frequency uses would harm their ability to operate. The U.S. Senate Committee on Armed Services, for example, sent a letter to the White House last week urging its intervention to dismiss Ligado’s planned use of the L-band because it “will likely harm military capabilities” and “would cost taxpayers billions of dollars to replace current GPS equipment” with “foreign space-based navigation and timing systems.” The Aerospace Industries Association also warned that Chairman Pai has “disregard[ed] the serious concerns raised by various government agencies about the harmful impacts to GPS.” Some stakeholders voiced their plan to file petitions to dismiss.

Attorney General Barr’s statement caused some speculation that the White House, through the Department of Justice (DOJ), signaled to the rest of the government that this matter is no longer open for debate. The decision to favor the entry of another U.S. commercial 5G player is not surprising given recent U.S. government efforts to curtail the ability of companies with perceived ties to the Chinese government to operate in the U.S. market, such as the recent actions we discussed here and here.

Supporters of Ligado are eager to see some part of the L-band become available for novel use, citing the scarcity of “greenfield” spectrum as a bottleneck to the United States’ competitiveness in the 5G race. Whether the FCC has provided sufficient guardrails to prevent the occurrence of harmful interference to existing GPS and other operations will only be apparent once the Order is released and can be studied — and, of course, over time, as Ligado rolls out its services.