The Biden-Harris Administration Transition:
What It Means for Telecommunications Policy – Spectrum

As discussed in prior blogs posts, nationwide 5G deployment is a bipartisan issue, and expanding access to spectrum for service providers, and to spectrum-based services for consumers, will continue to drive FCC policymaking in the new Administration. The FCC and the National Telecommunications Infrastructure Administration (NTIA) will continue to investigate and authorize a combination of access technologies and solutions, including spectrum sharing, unlicensed use, and auctions for licensed commercial wireless operations. The FCC also will continue to address network security and supply chain issues and to work with NTIA and the Department of Defense on matters involving access to government spectrum.

Key spectrum issues on regulators' plates will include:

• Open Radio Access Networks (ORAN). In September 2020, the FCC convened a forum on ORAN technologies that may be used to upgrade networks to 5G. ORAN networks offer an alternative to traditional cellular network architecture and could enable diversity in suppliers, better network security, and lower costs. The FCC will seek to continue efforts to ensure that the U.S. plays a leading role in 5G mobile network deployment. 

• State and Local Authority. Under Chairman Pai, the FCC generally was viewed as prioritizing federal authority to promote carrier network buildout at the expense of state and local government jurisdiction over rights-of-way, pole attachment, and local approvals of sites to construct and modify wireless towers. The new Democratic-led FCC likely will seek a more balanced approach in addressing 5G network deployment matters that emphasizes cooperation with and greater deference to local authorities.

• 5 GHz Band. The FCC has proposed auction procedures for overlay licenses for unused Educational Broadband Service (EBS) spectrum in the 2.5 GHz band. The current Democratic Commissioners did not support revised service rules and policies adopted under former Chairman Pai, however, and may seek to modify them before finalizing auction procedures.

• 3.45-3.55 GHz Band. Last year the FCC proposed changes to auction licenses in 100 MHz of the 3400-3550 MHz band and adopted a mobile allocation and flexible use rules for the band, which will be shared by federal incumbent users and commercial operations. In September 2020 the Department of Defense developed a sharing framework for the band. The recently enacted Consolidated Appropriations Act of 2021 effectively codified these efforts, requiring the FCC to begin an auction of flexible use service licenses for “all or part” of the 3.45-3.55 GHz band by December 31, 2021, and further requires that Federal users of the band begin the process of withdrawing or modifying their frequency assignments within 180 days after enactment of the CAA.

• 4.9 GHz Band. In September 2020, by a 3-2 vote, the FCC adopted new rules giving States flexibility with respect to use of spectrum in the 4.9 GHz (4940-4990 MHz) band. States may continue to use the spectrum for their own public safety networks; enter into commercial arrangements for deployment of public-safety communications services; lease capacity to a commercial provider; or some combination of these arrangements. Democratic Commissioners Rosenworcel and Starks dissented, and public safety and other stakeholders have asked the FCC to reconsider the rules as inconsistent with policy goals.

• 12 GHz Band. On January 15, 2021, the FCC initiated a proceeding seeking comment on how best to maximize use of the 12.2-12.7 GHz (12 GHz band). The proceeding will investigate a variety of potential alternatives for assigning new terrestrial mobile service rights to operate without causing harmful interference to incumbent satellite operations. Potential approaches include modifying existing licenses to authorize 5G terrestrial services; auctioning overlay licenses in the band (with the potential for relocating incumbent operations); and authorizing underlay use of the band (whereby terrestrial operations would be authorized at low power and operate on an opportunistic basis). The proceeding will also address various approaches to spectrum sharing among incumbents and new users, including geographic sharing; dynamic sharing techniques such as Spectrum Access Systems (SASs) developed for CBRS, and the automated frequency coordination approach established for unlicensed access in the 6 GHz band; and opportunistic access.

• Millimeter Wave Spectrum. The Pai FCC opened a proceeding in 2020 to consider rule changes to accommodate potential new uses of 12.9 MHz of spectrum in the 71–76 GHz, 81–86 GHz, and 92–94 GHz and 94.1–95 GHz bands (70/80/90 GHz bands). The NPRM followed requests to allow smaller antennas for fixed point-to-point operations in the 70 GHz and 80 GHz bands in order to support backhaul for 5G services, and to allow “Scheduled Dynamic Datalinks” to provide broadband service to aircraft or ships in motion in the 70/80/90 GHz bands.

• CBRS Implementation. Implementation of the FCC's three-tiered spectrum access model for the Citizens Broadband Radio Service in the 3550-3650 MHz (3.5 GHz) will continue to roll out with the impending grant of Priority Access Licenses, which were auctioned in 2020, and the integration of licensed operations with devices operating on a General Authorized Access (GAA) basis under the direction of SAS operators.

• License Concentration. The Communications Act requires the FCC, in developing rules and procedures for spectrum auctions, to “avoid[] excessive concentration of licenses” and to “disseminat[e] licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women.” After issuing bidding rules, the statute directs the FCC “to ensure that interested parties have a sufficient time to develop business plans, assess market conditions, and evaluate the availability of equipment for the relevant services.” Recent Administrations have placed less emphasis on these statutory obligations, resulting in unprecedented concentration of licenses. With the new Administration's greater emphasis on antitrust matters and diversity, the new FCC may examine this issue, as well as its policies governing mobile spectrum holdings.