FCC's 4.9 GHz Order Will Likely Survive Trump Administration

Jason Karp, outside general counsel for the PSSA, said the 4.9 GHz band “was really pulled" from "the brink of destruction -- it wasn’t that long ago that 4.9 was at risk of no longer being dedicated to public safety, to be utilized for a variety of different purposes.” A former general counsel to the FirstNet Authority, Karp spoke during a PSSA webinar Tuesday.

The FCC won’t be “too quick” to revisit the order in the new administration, predicted Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. “Some of the more serious challenges to the order will be decided by courts in the coming year and that, plus future FirstNet developments, will likely shape the issue going forward,” Kane added Wednesday: “A new rulemaking to backtrack would likely be overtaken by those events, even if the new chair were inclined to do so.”

An opponent of the order noted it contains “surprises” that will concern some public safety agencies. The public safety lawyer noted the FCC addresses AT&T’s use of the band for commercial purposes only in a footnote and the order restricts future use: Licenses will be pared back from wide areas to only where a licensee has built out. For example, a licensee that has built out in Juneau, Alaska, won’t be able to expand the network to other parts of the state.

Carr supported the order and Commissioner Anna Gomez was recused, “so I assume it’s a very done deal,” said an opponent of assigning the spectrum to FirstNet. The vote was unanimous “and the cops want it,” a former NTIA official said.

It’s difficult “to rule anything out at this point,” said Jeffrey Westling, American Action Forum director-technology and innovation policy. “Operating rights in mid-band frequencies are vital to the wireless carriers, and creating a future pipeline for exclusive use licenses seems challenging,” Westling wrote in an email. If Congress can't free spectrum, the FCC “will continue to have to get creative to make more bandwidth available,” he added. While a quick reversal is unlikely, “there are still a lot of questions up in the air that could affect how a Trump administration approaches these issues,” he said.

The 4.9 GHz band wasn’t being utilized to the extent public safety needed and the FCC wanted to increase use in a way that benefited public safety, Karp said. The FCC authorized issuance of a nationwide overlay license to a nationwide band manager yet to be selected, he noted.

That license will cover only parts of the band not already being used, Karp stressed. “This is a really, really important part of the order,” he said: “While the FCC wants to maximize utilization of the band, they also made it a priority to ensure that incumbent users, existing licensees, were not interfered with, and they could maintain their current and existing operations.”

In 2020, under Chairman Ajit Pai, the FCC gave the states spectrum control, though Commissioners Jessica Rosenworcel and Geoffrey Starks dissented (see 2009300050). The FCC stayed that order after Rosenworcel took the chair (see 2105270071).

The 2020 approach failed because there was little interest from the states, Karp said. “The reason is ... you need that nationwide license to create economies of scale, to create investment, to ensure that the technology that public safety needs is going to be there,” he said. The FCC left open-ended whether entities beyond public safety can use the band.

The FCC Wireless and Public Safety bureaus are to set up a committee that will select a band manager and the details have been left to the bureaus, Karp said. “It’s a wait and see right now.” The order also imposes a freeze on new licenses for 4.9 GHz spectrum as well as license modifications, he said. The freeze makes sense because the FCC still doesn’t have “really good visibility” into how the band is being used.

“We try to make ourselves in a position where we become the voice for the nearly 6 million connections to FirstNet and 28,000 public safety agencies who have chosen FirstNet as their provider,” said Jeff Johnson, a leader of the PSSA and retired fire chief. FirstNet is “the nation’s only public safety broadband network,” said Johnson, also former vice chair of the FirstNet Authority board.

Johnson noted that the 4.9 GHz band has been assigned to public safety since 2002. “There have been long conversations about its underutilization,” he said: “There are plenty of steps coming up from the selection of a band management committee to the selection of a band manager and then all the things that follow on the heels of that.”

The PSSA has no plans to make recommendations to the FCC about who should manage the band, Johnson said. “To us, it’s about are they skilled? Do they have the right background? Do they have the right technical capabilities? Do they have the credibility?”