Pai Votes on, Circulates 2 Final 5G Items for FCC Review; Democrats Could Object
FCC Chairman Ajit Pai circulated a neutral NPRM on the 12 GHz band late last week, plus a notice on bidding procedures for the 2.5 GHz auction, attempting to close out two more spectrum items before he leaves office Jan. 20. The two items had been rumored candidates for the January commissioners’ meeting (see 2012210051) but didn’t make the agenda. With Democrats poised to take control of the FCC, industry experts said the question is whether they will allow the items to get a vote or ask for a delay until the new administration. The timing of both items would allow Pai to force a vote under must-vote rules, though he still has the option of putting them on the Jan. 13 meeting agenda.
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Pai “circulated the draft 2.5 GHz auction public notice to ensure that we continue to prepare for the auction,” a spokesperson said. “He has voted for the proposal and asked his colleagues to do so as well.” Pai also voted for the 12 GHz item and asked other commissioners to do the same, the spokesperson said. It “does not include tentative conclusions but rather would seek input on possible methods for assigning new flexible use rights while protecting incumbent users, and also on whether the costs of accommodating new services in the band would exceed the benefits,” the official said.
The items are “part of Pai’s overall end push for his legacy as the 5G chairman,” said Public Knowledge Senior Vice President Harold Feld. “He can deservedly take a lot of credit for getting out a lot of midband spectrum for licensed and unlicensed use, including the controversial C-band auction,” he said. Pai has been “respectful” of concerns that the FCC not take on major, controversial items before Jan. 20, he said. “Really, it's just a question of whether anyone objects,” and if no one does, the items can be voted on circulation or added to the Jan. 13 agenda, he said. PK supports acting on a 12 GHz NPRM.
“If you’re a Democrat, what do you think is the win?” Feld said. “These are both essentially notices of proposed rulemaking rather than definitive items. Do you want to get the ball rolling now so that you can get a ton of spectrum out sometime in the first year, or do you hold this up so that it can be entirely your initiative and put your distinct stamp on it, or do you not want to do it at all?”
Both items show Pai “finding opportunities to move the ball on his 5G agenda,” said Targeted Victory Vice President-Public Affairs Nathan Leamer, a former Pai aide. “The only reason I think the Democrats might slow him down is because when push comes to shove, they have to start thinking about what their proactive agenda would be in 2021,” he said: “12 GHz might be a solid bipartisan place to start. Therefore, they may want to slow down this item so they can claim ‘the win’ later in 2021.”
Fletcher Heald’s Francisco Montero “would be surprised” if the FCC “didn’t seek a delay on these items, even if they are unlikely to get it.” Democrats Jessica Rosenworcel and Geoffrey Starks probably don’t “want their flank exposed as having allowed the votes without at least some objection expressed,” he said.
What a neutral 12 GHz NPRM means isn’t completely clear, said a lawyer for opponents of the multichannel video and data distribution service (MVDDS) petition. Another lawyer representing opposition to the petition said the NPRM is likely to get a 3-2 vote on circulation. He said Pai seemed to have timed it to get three votes in time for a must-vote before Jan. 20, when he leaves the agency, though it’s also possible the item could be on the Jan. 13 agenda.
Dish Network said the neutral NPRM could tackle that the existing 12 GHz band rules "are outdated, inefficient, and ripe for review in today’s 5G world." It said the band "represents 500 megahertz of spectrum that is suited for terrestrial, two-way 5G use cases, while being able to protect” direct broadcast satellite operations.
“Our public interest coalition has urged the commission to move ahead with a truly neutral NPRM on how this 500 MHz can be shared more intensively for 5G mobile and fixed wireless broadband," said Michael Calabrese, director of the Wireless Future Program at New America: “The band is very underutilized, yet there are important satellite services that need to be protected. Among the potential benefits of the NPRM is to consider the feasibility of opportunistic access to large channels of unused spectrum in rural and underserved areas where [wireless ISPs] and other operators can potentially put it to use.”
The same day the NPRM went on circulation, SpaceX CEO Elon Musk urged Pai not to open the 12 GHz band to 5G. Low-earth orbit broadband connectivity "depends critically on the 12 GHz band," Musk told Pai, Starks and Commissioners Brendan Carr and Nathan Simington, per an International Bureau ex parte posting Monday. SpaceX said the MVDDS petition would exacerbate the digital divide. Musk similarly lobbied Pai in October (see 2010210005).
RS Access, which backs the petition (see 2010090048), said the circulated NPRM "moves the U.S. one step closer to unleashing the 12 GHz band, which will supercharge 5G deployment throughout the country for next-generation mobile broadband services. A notice-and-comment rulemaking demonstrates the FCC's clear support for exploring how 12 GHz can nearly double the nationwide availability of mid-band spectrum while catapulting the U.S. to a lead position in telecom competitiveness globally. The 500 MHz of contiguous, terrestrially licensed spectrum between 12.2 and 12.7 GHz represents the FCC's greatest opportunity to meet exploding demand for mobile broadband."
The 2.5 GHz rules are less controversial, officials said. T-Mobile, which is using the band for 5G, is considered likely to dominate that auction (see 2009180029).