Trump FCC Seen Likely to Rewrite Some of Rules on Spectrum
The conventional wisdom used to be that spectrum items are mostly nonpartisan, but industry watchers expect some major difference in the approach of the incoming Donald Trump administration compared with that of Barack Obama. Republican FCC Commissioners Ajit Pai and Mike O’Rielly have supported many of the spectrum initiatives, though with some significant objections to some of the policy calls. While much of the focus since the election has been on the likely overturn of net neutrality, ISP privacy and a few other politically charged orders, the Republican FCC also is expected to undo parts of the wireless policy pushed by Democratic chairmen Tom Wheeler and Julius Genachowski.
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A case in point is the Obama administration’s strong push on sharing, highlighted by the 2012 report by the President’s Council of Advisors on Science and Technology (PCAST) (see 1207230040). While the Trump FCC and White House are unlikely to abandon sharing, industry observers expect more emphasis on finding exclusive use spectrum first.
The 3.5 GHz band offers a key study. All five FCC commissioners voted for a sharing regime in the band, but both Pai and O’Rielly expressed reservations about parts of the rules (see 1504170055). O’Rielly said the rules for the priority access licensees (PAL), the licensed component, didn’t offer wireless companies enough certainty to ensure a successful PAL auction. Pai said exclusion zones in the order, designed to protect Navy radars, were too large. Industry observers said it remains to be seen whether the Republicans will reopen the rules to address their concerns.
Republicans have been skeptical about a plan to set aside a blank channel in each market after the incentive auction for Wi-Fi devices and wireless mics (see 1506160043). Pai and O’Rielly have expressed displeasure with the pace of the LTE-unlicensed rollout (see 1609090029). Republicans and Democrats on the FCC had significant differences on the incentive auction rules, especially on spectrum aggregation limits and a set-aside for competitive carriers.
On those and other issues, the differences between Republicans and Democrats could lead to some policy changes once Republicans are in charge of the FCC and the rest of the administration Jan. 21, industry officials said.
A former FCC spectrum official said wireless issues haven’t been bipartisan for at least 10 years, starting with fights under then-Chairman Kevin Martin. “Spectrum is bipartisan when the rules are straightforward and intuitive, the spectrum is clear and build-out requirements are reasonable,” the former official said.
Little Focus Yet
So far, there has been little public focus on the wireless implications of the Trump election, said former FCC engineer Michael Marcus, now a spectrum consultant. “Everybody is focusing on net neutrality and [Communications Act] Title II issues and nobody is talking about spectrum,” Marcus said. Spectrum policy historically has been nonpartisan, though now “Democrats and Republicans seem to disagree on everything,” he said.
"Both parties usually come together on the overall arc of spectrum policy, but there are nuanced differences,” said former Commissioner Robert McDowell, now at Cooley. Republicans favor the auctioning of exclusive-use licenses, when possible, over sharing, while Democrats have been stronger proponents of sharing, he said. “When it comes to relinquishing federal spectrum for private sector use … the bureaucracies of federal agencies wield tremendous power,” McDowell emailed. “They control how the costs of relocation are assessed, and that process -- with its assumptions -- are still a black box that lacks transparency. So trying to pry spectrum away from government users is a difficult task regardless of the governing philosophy of the White House party. Having the attention of the highest ranking officials in the West Wing to make spectrum reallocation a priority for the country's 21st Century economy can make a huge difference."
Pai and O’Rielly have expressed strong support for unlicensed, “but they’re also not as supportive as Wheeler and [Jessica] Rosenworcel have been,” said Harold Feld, senior vice president at Public Knowledge. Republicans have moved toward greater acceptance of sharing and the value of unlicensed, but the LTE-U fight shows the differences, he said. “Pai and O’Rielly have protested using the certification process to test for coexistence [issues] or even making coexistence a requirement for use of the unlicensed bands because Part 15 means you take whatever interference comes your way.”
Michael Calabrese, director of the Wireless Future Program at New America, said he is thankful that many aspects of spectrum policy remain nonpartisan. “It has become generally accepted that we can open underutilized bands, such as 3.5 GHz, faster and more effectively through spectrum-sharing arrangements,” Calabrese said. “Commissioner Pai has questioned the ad hoc giveaway of valuable spectrum rights, which is laudable. And Commissioner O’Rielly has been a champion of unlicensed spectrum and Wi-Fi as offering affordable connectivity not only to consumers, but to a wide variety of small businesses and market entrants, such as [wireless] ISPs and wireline ISPs. We look forward to working with the new commission to free up an abundance of underutilized spectrum.”
Sharing
There is no consensus on sharing when it comes to replenishing the “spectrum pipeline,” said Scott Cleland, chairman of Netcompetition. “The move to sharing means after the incentive auction, the pipeline dies.”
“Democrats generally favor ‘sharing by rule’ where Republicans prefer ‘sharing by license,’” said Richard Bennett, free-market blogger and network architect. “The rule-based approach simplifies service rollouts, but it has the unfortunate side effect of limiting services to small geographic areas. A more productive approach is to regard PCAST-style sharing as part of a transition from legacy applications and systems to modern flexible use licensing approaches. When the 3.5 GHz band fails to attract applications, the plan will be revised on a better technical foundation.”
“Spectrum sharing makes it a lot easier for the incumbent as they basically just have to stay put and the onus is on the new users to make themselves non-interfering with the original user,” said Roger Entner, analyst at Recon Analytics. “This puts all the work on the mobile guys who have to come up with a new spectrum usage paradigm,” he said. “If you pursue exclusive use, no technical changes have to be made.”
Akin Gump predicted in a post-election analysis that, given Trump’s pro-business focus, “a Trump-controlled FCC might seek to accelerate actions to adopt rules/policies to authorize 5G services in the United States in an effort to establish America’s leadership in this very important area.” The outlook on sharing and the privatization of government spectrum is more mixed, the law firm said. “A Trump-led FCC might seek to accelerate the reallocation of as much government-controlled spectrum as possible to private commercial users and to attempt to reduce the deficit through auction revenue generated by the sale of such spectrum,” the firm said. “To the extent that spectrum is used for national security purposes, Trump would be less likely to favor reallocation to private uses.”