On Thursday, July 14, the FCC adopted its “Spectrum Frontiers” Order which allocates a substantial amount of high-frequency millimeter wave spectrum for both licensed and unlicensed use to support the deployment of the “next generational evolution of wireless technology to so-called” 5G wireless networks and services. This order, and the agency’s speed in adopting this item, reflects the FCC’s commitment to expanding spectrum access through both traditional (licensed) and emerging (unlicensed and shared) access regimes.

Setting aside nearly 11 GHz of spectrum, more than half of which is allocated for unlicensed use (7 GHz), the FCC signaled its intent to work aggressively to unlock existing spectrum bands to facilitate the deployment of 5G. Recognizing that much of this spectrum will support nascent technology and services, the Commission declined to adopt broad prescriptive rules, subject to at least one notable exception (noted below), in favor of a more open framework intended to incentivize market actors to innovate and invest in new technologies.

The FCC’s action followed its October 2014 Notice of Inquiry, and its October 2015 Notice of Proposed Rulemaking in the same docket. The Order includes a Further Notice of Proposed Rulemaking (FNPRM) on a range of issues that the FCC seeks comment on, including permitting 60 GHz operations aboard aircraft.

Key Components of the Order Concerning Unlicensed Uses and Spectrum Sharing

Expanding Spectrum for WiGig and Other Unlicensed Uses in the 64-71 GHz Band

In the 64-71 GHz band, the Commission reserved 7 GHz of spectrum for unlicensed use, which will permit service providers to deploy next generation applications and services, including WiGig services and operations. The Commission’s actions are likely to alleviate spectrum congestion from carrier networks by enabling mobile data off-loading through Wi-Fi and other unlicensed connections.

This allocation is very significant, in part because it doubles the amount of high-band unlicensed spectrum to 14 GHz of contiguous spectrum for unlicensed uses. The Commission acknowledged that unlicensed WiGig devices using the 57-64 GHz band are beginning to hit the market, and are expected to grow significantly in the future. The additional 7 GHz of unlicensed spectrum allocated under the latest order will likely enable higher throughput and is expected to enable a greater volume of simultaneous high-bandwidth users in these bands.

Notably, the Commission declined to wait for the international regulators (the ITU) to further study the potential for other approaches to harmonizing these bands, opting instead to take the initiative and unleash this spectrum for development by innovators. The Commission also declined to extend the unlicensed regime further up the band, at 72.5-76 GHz, at this time. Instead, the Commission seeks further comments in the FNPRM on that issue.

Opening Up the 28 GHz Band for Mobile Use & Sharing With Satellite Services

The FCC also opened up the 27.5-28.35 GHz (28 GHz) band to Upper Microwave Flexible Use Service (UMFUS) – including mobile uses. In doing so, it adopted a geographic area licensing scheme, using county-sized licenses that have both fixed and mobile rights. The FCC noted near-unanimous support among carriers for opening up the 28 GHz band, despite concerns among some satellite industry players. Licenses will initially be granted to incumbent Local Multipoint Distribution Service (LMDS) licensees, rather than auctioned off as a separate overlay. The FCC’s approach to the 28 GHz band largely mirrored the proposals in its October 22, 2015 NPRM. The FCC justified this approach as flexible and efficient, asserting that it would allow each licensee to coordinate fixed and mobile uses in its geographic area and would minimize transaction costs. The term of each UMFUS license will be 10 years.

Addressing Fixed-Satellite Service (FSS) allocations in the 28 GHz band, the FCC concluded that sharing the band would have minimal impact on most FSS earth stations, allowing terrestrial mobile services and FSS to co-exist and expand with modest separation distances (although the FCC noted a greater potential impact on the non-geostationary satellite systems provided by O3b). The FCC declined to upgrade FSS to co-primary status, or to grant UMFUS licenses to existing FSS providers. Instead, the FCC decided to continue authorizing gateway satellite earth stations on a first-come, first-served basis under Part 25 of the FCC rules, with up to three locations per county, and also noted market-based mechanisms for additional stations (e.g., FSS operators obtaining UMFUS licenses, or negotiating private agreements with UMFUS license holders). Finally, the FCC grandfathered existing and pending 28 GHz earth stations, allowing those stations to operate without regard for possible interference with UMFUS services. Despite concerns raised by satellite operators, the FCC declined to impose an aggregate interference limit on terrestrial 28 GHz operations, but reserved the right to do so if warranted by future data.

PEA Licenses in the 39 GHz Band, Subject to Military Allocations and Incumbents

The FCC also created new upper microwave flexible use licenses authorizing mobile operations in the 38.6-40 GHz band (39 GHz band). Instead of using county-sized licenses, as proposed in the NPRM, the FCC adopted Partial Economic Area (PEA) licenses – citing a need to balance facilitating access for smaller providers with incentivizing investment and deployment. As with the 28 GHz band, the FCC is granting the new mobile license rights to existing 39 GHz licensees, who currently hold Economic Area (EA) licenses. The licenses for unassigned frequencies will be auctioned off after a pre-auction license reconfiguration process aimed at creating larger contiguous blocks. Certain PEA licenses will be subject to rights of older Rectangular Service Area (RSA) licenses. In addition, in the 39.5-40 GHz band the FCC chose to maintain the co-primary Federal FSS and MSS allocations that are reserved for military systems.

The FCC also addressed an issue concerning FSS use of the 39 GHz band, and provided for first-come, first-serve authorization of FSS with protection zones from terrestrial transmissions – subject to certain conditions. The FCC replaced the existing pairs of 50 MHz channels in the 39 GHz band with seven newly-created 200 megahertz channels, citing a balance between high throughput and enough channels for multiple operators. The FCC anticipates that Time Division Duplexing (TDD) will allow efficient utilization of these channels.

PEA Licenses in the 37 GHz Band, Plus 600 MHz for Dynamic Sharing

The FCC also opened the 37 GHz Band (37-38.6 GHz), noting that this lightly used spectrum has the potential to create a larger, contiguous 37/39 GHz band. In the NPRM, the FCC had proposed a hybrid licensing scheme for the 37 GHz band, granting local operating rights to property owners while auctioning off county-sized licenses for wider area use. However, faced with opposition from commenters, the FCC changed its approach. The FCC created five new 200-megahertz blocks in the 37.6-38.6 GHz portion, with geographic area licenses based on PEAs – the same scheme as for 39 GHz (although with limits concerning certain military sites). The FCC is designating the 600-megahertz block from 37.0-37.6 GHz for co-primary, shared access between Federal and non-Federal users, utilizing a dynamic shared framework that will be further developed by industry and government in the FNPRM.

Elimination of Broadcast and Broadcasting-Satellite Allocations in 42 GHz Band

The FCC also deleted the broadcasting and broadcasting-satellite service allocations from the 42-42.5 GHz band (42 GHz band), while declining to allocate that band to Fixed Satellite Services.

Key Operational Requirements and Policy Matters

Network Security Requirements

In an effort to implement “security-by-design,” each UMFUS licensee will be required to submit to the FCC a description of its network security plans and related information, and to do so within three years after grant of the license, and no later than six months prior to deployment.

Spectrum Holdings

The order adopts a spectrum aggregation limit of 1250 megahertz that will apply to licensees bidding on spectrum in the 28 GHz, 37 GHz, and 39 GHz bands, with the goal of ensuring that multiple providers have access to the spectrum and advancing competition.

Performance Requirements and Technical Rules

The order declines to adopt a unified performance metric, concluding that a unified approach would not facilitate innovative spectrum use and would favor certain uses over others. Instead, the FCC adopted a series of service-specific metrics, tailored for particular services (e.g., mobile and point-to-multipoint services, fixed services, satellite services, and combinations of different service types) as well as buildout requirements.

The FCC also adopted new technical rules concerning duplexing, transmission power limits and tower heights, out-of-band emissions, interference and operability. The technical rules include application of the FCC’s Part 15 rules for unlicensed use to operations in the 64-71 GHz band, with some modifications.

Among the notable technical rules is a bar on unlicensed use of the 57-64 GHz spectrum on board of aircraft. The FCC has determined to keep that prohibition on place – for the time being. The FCC’s order notes support for aircraft use among technology companies and Boeing, who provided data indicating that such use would not interfere with satellites. The FCC also acknowledged the radio astronomy community’s concerns that even minimal interference from WiGig users on aircraft could impair radio astronomy activities. In light of technical disagreements among commentators, the FCC has determined that more technical analysis and data are needed, and is inviting further comments on the aircraft issue in the FNPRM.

Matters to Be Considered in Further Rulemaking

FNPRM

The FCC also seeks further comment in its FNPRM on a number of additional proposals, including:

• Authorizing fixed and mobile use for an additional 18 GHz of spectrum available in the following bands: 24.25-24.45 GHz together with 24.75-25.25 GHz (24 GHz band), 31.8-33 GHz (32 GHz band), 42-42.5 GHz (42 GHz band), the 47.2-50.2 GHz (47 GHz band), 50.4-52.6 GHz (50 GHz band), and the 71-76 GHz band together with the 81-86 GHz bands (70/80 GHz bands).
• Use of bands above 95 GHz, and the potential for harmful interference.
• Further developing the sharing framework for the 37-37.6 GHz among non-Federal and Federal entities.
• Circumstances under which Federal government users can gain coordinated access to spectrum in the 37.6-38.6 GHz band (in addition to the protected sites) in the future.
• Developing performance requirements for spectrum use associated with the Internet of Things (IoT), such as a machine-to-machine healthcare devices, autonomous driving cars, and home and office. The FCC is also seeking comment on supplementing such requirements with a “use-or-share” obligation, in which a licensee’s unused spectrum would be shared with others.
• Implementation of the new spectrum aggregation limits for spectrum auctions, including limits on a given entity holding over 1250 megahertz of spectrum in total.
• Increasing the Power Flux Density of satellites using the 37.5-40 GHz band and having their transmissions be received by user terminals.
• Potential digital station identification requirement for UMFUS.
• Refining the FCC’s technical rules concerning unlicensed 60 GHz operation aboard aircraft, antenna height, minimum bandwidth for given power levels, coordination at market borders for fixed point-to-point operations and spectrum sharing analysis/modeling.

Conclusion

Initial comments on the additional matters raised in the FNPRM are due September 30, 2016; with reply comments due October 31, 2016.