A Tuesday House Communications Subcommittee hearing to re-examine proposals to improve rural broadband deployments appears aimed in part at looking at what lawmakers can do in the next Congress given the limited legislative work time left this year, communications sector officials and lobbyists said in interviews. House Communications aimed to revisit the broadband proposals after recent FCC and congressional efforts (see 1807130065). A House Commerce Committee GOP staff memo notes language from several bills House Communications reviewed in January made it into the Repack Airwaves Yielding Better Access for Users of Modern Services (Ray Baum's) Act FCC reauthorization and spectrum legislative package (HR-4986), which President Donald Trump signed into law as part of the $1.3 trillion FY 2018 omnibus spending bill (HR-1625). House Commerce also cleared other broadband legislation recently (see 1803230038 and 1807120063).
Wireless Spectrum Auctions
The FCC manages and licenses the electromagnetic spectrum used by wireless, broadcast, satellite and other telecommunications services for government and commercial users. This activity includes organizing specific telecommunications modes to only use specific frequencies and maintaining the licensing systems for each frequency such that communications services and devices using different bands receive as little interference as possible.
What are spectrum auctions?
The FCC will periodically hold auctions of unused or newly available spectrum frequencies, in which potential licensees can bid to acquire the rights to use a specific frequency for a specific purpose. As an example, over the last few years the U.S. government has conducted periodic auctions of different GHz bands to support the growth of 5G services.
FCC Chairman Ajit Pai proposed rules providing a new framework for “the vast majority” of pole attachments under federal jurisdiction by imposing a one-touch, make-ready” (OTMR) regime. An accompanying declaratory ruling attacks local or state moratoriums on new wireless and wireline facilities. The order and declaratory ruling are set for a vote at commissioners’ Aug. 2 meeting (see 1807110053) along with items on broadcast incubators, repacking reimbursement, a telehealth item and a spectrum/5G auction-related action.
Commissioners approved 4-0 an NPRM and order Thursday that moves the U.S. a step closer to opening the C-band, key mid-band spectrum for 5G. The FCC will start by taking a snapshot of the 3.7-4.2 GHz band, though as expected the agency relaxed its reporting requirements for satellite companies from what was in the draft order (see 1807060025). Rather than asking for additional data from fixed satellite service earth stations, the FCC will require them only to certify that the information the agency has is up-to-date. Space station operators will have to provide basic information. The NPRM asks whether the FCC should seek additional data from satellite operators, officials said.
The FCC will auction off three more high-frequency bands in the second half of 2019, Chairman Ajit Pai said Wednesday as he unveiled the items for an Aug. 2 commissioners’ meeting. Pai said the meeting will focus on 5G, with draft rules for the first high-band spectrum auctions targeted for a vote. Pai also tentatively plans votes on a draft order to adopt "one-touch, make-ready" pole attachments and bar state and locality moratoriums on network buildouts, a draft order on broadcast ownership diversification through incubators and a draft notice of inquiry on creating a $100 million telehealth pilot program.
Supreme Court prospect Thomas Hardiman has ruled for and against FCC rules governing small business bidding credits in wireless spectrum auctions, but never reversed auction results. The judge of the 3rd U.S. Circuit Court of Appeals since 2007 reportedly remained in contention to replace retiring Justice Anthony Kennedy on the high court, along with the D.C. Circuit's Brett Kavanaugh, the 6th Circuit's Raymond Kethledge and the 7th Circuit's Amy Coney Barrett. Kavanaugh has by far the most extensive record on telecom and media law. Kavanaugh -- in dissenting from 2017's USTelecom ruling (here) upholding the FCC's 2015 net neutrality order -- and Kethledge (here) have voiced skepticism about broadly deferring to regulatory agencies on ambiguous statutes under the Chevron doctrine (see 1807040001). President Donald Trump planned to have announced his nominee Monday night.
New York City and other commenters asked the FCC to preserve the 4.9 GHz band for public safety use. Comments were due Friday on a Further NPRM on the public safety band, approved 5-0 by commissioners in March (see 1803220037). Commissioners have been frustrated that 16 years after its use was approved for public safety, the band remains underused. The notice was the sixth by the FCC on the band. Comments were posted in docket 07-100.
Commissioners dismissed a petition for reconsideration by the Competitive Carriers Association and upheld a Wireless Bureau decision approving transfer of 514 39 GHz licenses from a subsidiary of FiberTower to AT&T. The commission said CCA didn’t have standing to make the challenge. “CCA has not made any allegations of specific competitive harm that was the direct result of the Commission’s consent to the subject Transaction and has not established that it is aggrieved or injured by the Consent Order,” the FCC said. “It makes generalized statements about ‘expense to taxpayers, consumers and 5G competition’ and ‘unjust enrichment’ to FiberTower, neither of which demonstrates how it, or its members, are aggrieved or injured by the consent to the Transaction.” The bureau authorized AT&T to take control of high-band licenses as part of its buy of FiberTower in February (see 1802080055). In April, CCA asked the FCC to overturn the decision (see 1804030032). “Today’s decision is disappointing, and makes it even more important that the FCC continues work to make millimeter wave spectrum available to all carriers at auction as soon as possible,” CCA President Steve Berry told us. “High-frequency millimeter-wave spectrum provides a real opportunity for competitive carriers to utilize valuable, limited spectrum to deploy the advanced telecommunications services that consumers want and demand, especially those living in rural and remote areas.”
The FCC granted 12 of 14 waiver petitions in the Connect America Fund Phase II auction of subsidies for fixed broadband and voice services, though some didn't qualify to bid. Meanwhile, Comcast and MediaCom told us they didn't apply to bid in the auction starting July 24. The Wireline and Wireless bureaus granted 10 of 11 applicant waiver petitions asking regulators to accept late-filed Form 477 submissions as evidence of their voice and/or broadband service experience but denied Net Vision Communications' request because it didn't file a 477 for a relevant period, said an order in docket 17-182 and Tuesday's Daily Digest. The bureaus noted the waivers didn't necessarily mean applicants were qualified to bid, as applications were judged in totality; a public notice Monday announced 220 applications were accepted and 57 denied (see 1806250051). Waiver grantees qualified to bid were Workable Programs and Systems, Hankins Information Technology, Red Spectrum Communications, 360 Communications, Pueblo of Laguna Utility Authority and Northern Arapaho Tribal Industries. Not qualified were Redzone Wireless, Emerald Cable, Good Connections and Skyrunner. The bureaus denied Sonus Technologies' request to waive a requirement that applicants with fewer than two years of experience submit three years of audited financial statements. In another order, the bureaus granted waivers to Horizon Telcom and Hawaiian Telcom to amend applications to reflect pending ownership changes, conditioned on deal consummation. The FCC May 29 approved transfers from Horizon Telecom and two subsidiaries to Horizon Acquisition Parent; June 19, it approved transfers of control from Hawaiian Telcom to Cincinnati Bell. Both applicants were qualified to bid.
Bidirectional sharing of commercial spectrum for federal users to have access to commercial spectrum has emerged as a Trump administration focus. Proposals remain controversial for carriers.
The FCC released draft items for commissioners' July 12 meeting (see 1806200058), including an NPRM on C-Band spectrum at 3.7-4.2 GHz. Also on the tentative agenda for the meeting are drafts on wireless emergency alerts (WEA) and the emergency alert system (EAS), changes to cellular, children's TV programming (see 1806210021), nationwide number portability and enforcement proceeding rules for complaints.