Davis Wright Tremaine LLP

Developments at the FCC regarding the use of the 3.7-4.2 GHz band have raised questions about the future operation of earth stations in that band. As the FCC considers whether to reallocate the spectrum available for earth station operations, they have opened a short filing window (until July 18, 2018) that permits cable operators to license and/or register such earth stations immediately to maximize the protection available for their continued operation. The opportunity to secure such protections is enhanced because the FCC has waived the standard requirement that such applications be accompanied by a “frequency coordination” report. As a result, cable operators can take advantage of this limited opportunity to protect their earth station operations without the time and expense normally associated with securing such frequency rights.

FCC Considering Potential Reallocation and Spectrum Sharing in the C-Band (3.7-4.2 GHz)

This issue has arisen now because Congress and the FCC are looking closely at making changes to the spectrum allocated in the 3.7-4.2 GHz band, known as the “C-Band.” The C-Band has long been reserved for dedicated use by earth stations and certain point-to-point fixed services. However, the FCC issued a Notice of Inquiry last August asking about potential new C-Band uses, including possibly allocating some portion of the spectrum for wireless broadband applications.

In addition, in the recently passed MOBILE NOW Act, Congress ordered the FCC to issue a report addressing the feasibility of allowing commercial wireless services to use or share frequencies in the C-Band. In response, the FCC issued a recent Public Notice seeking comment on how sharing in this spectrum band could best be accomplished. A further NPRM and addition agency action are expected this summer.

FCC Freezes All Applications for New FSS Earth Station Licenses

In connection with the foregoing activities, the FCC is temporarily suspending applications for new earth station licenses in the 3.7-4.2 GHz. As a result, all applications for new earth station licenses, registrations or major modifications will be dismissed. This freeze is intended to “preserve the current landscape” of users in this band, pending the Commission’s consideration of potential spectrum sharing opportunities in this band.

Limited Exception to FCC Freeze –Cable Operators May File Applications Until July 18, 2018 to Preserve Rights of Existing Operational Earth Stations

At the same time, the FCC recognized that not all current earth stations in operation today are licensed or registered with the FCC. As a reminder, under the FCC’s lexicon transmit-receive earth stations are licensed, while receive-only earth stations are simply registered (although the application process is the same for both). To ensure that those operations are accounted for in future spectrum decisions, the agency is permitting existing users to license or register their earth stations without jeopardy under a limited filing window which closes on July 18, 2018. The Bureau emphasized that this window is limited to earth stations that have been constructed and are operational as of April 19, 2018. Significantly, the FCC granted a temporary waiver of the requirement that applicants include a frequency coordination report with the application.

The American Cable Association (ACA) has filed a request for clarification of several aspects of the 90 day filing window. ACA’s request, if granted, would clarify that: 1) registration of earth stations within the 90 day window would put such registrants on the same footing as prior registrants; 2) a frequency coordination report will not be required at a later date; and 3) a frequency coordination report is not needed to protect against interference from, or to, fixed station licensees. The ACA has requested that the agency make these clarifications by May 11. Even if the agency does not act on this request, we believe it is beneficial for cable operators to file an application to register/license their earth station operations.

Protecting Your Earth Station Operations by Filing an Application for a New License or Registration

We believe that all current cable television MVPDs that are currently operating unlicensed or unregistered earth stations should take immediate steps to license/register such facilities. Doing so should ensure that such operations are on the same footing as currently licensed/registered operations, and that any future sharing in the C-Band will account for the spectrum needed to continue operating these earth stations without interference.

Applications to license or register these operations can be filed, without a frequency coordination report, at any time before July 18, 2018. Please contact us for further information about the application process and requirements.