FCC Meets NTIA on Possible Tweaks to 37 GHz Rules Before Friday's FCC Vote

Industry officials said when the draft was circulated last month similar questions about what a licensee is buying appear to have driven down prices in the ongoing 24 GHz auction (see 1903220055). NTIA and the FCC didn’t comment. The 24 GHz auction had $1.87 billion in gross bids at the end of bidding Monday.

Carriers raised concerns about the coordination process. CTIA said in comments posted Monday clarity is critical and coordination zones shouldn’t change after an auction. “Once an auction application is filed, the goalposts should not be moved, and permitting additional coordination zones would severely disadvantage winning bidders who valued specific spectrum rights in making their bidding decisions,” said a filing in docket 14-177.

The FCC is giving DOD access to 600 MHz in the lower 37 GHz band, CTIA said: “The Draft Order nevertheless would grant the Department additional access to the Upper 37 GHz band.” The filing reports on calls between Scott Bergmann, CTIA senior vice president-regulatory, and aides to Chairman Ajit Pai and Commissioner Mike O’Rielly.

Verizon and AT&T sought more clarity last week (see 1904050036). T-Mobile also raised questions in a filing posted Monday. The draft rules would “adversely impact bidding” in an upcoming auction, T-Mobile said. Carriers require a “stable, predictable spectrum environment in order to engage in effective network planning,” the carrier said: “However, the proposed process provides no assurances -- it includes no limitations on the potential encumbrances in the Upper 37 GHz band, either with respect to frequencies or geographic area.”

“The historic trajectory of the tension between federal spectrum users and the FCC has not changed,” said Robert McDowell of Cooley. “They may clash even more often and more vehemently as carriers look to higher band frequencies to satisfy increasing consumer hunger for more spectrum. Those higher bands are chocked full of federal users and incumbent providers who service them, so more conflict is inevitable.”

“Looking at Verizon's ex parte notice, it does seem reasonable for them to want to make sure that if they buy licenses they aren't going to have DOD getting in the way of their providing service,” said Joe Kane, tech policy fellow at the R Street Institute. “This does seem like a potentially recurring problem as commercial and government bands increasingly come into conflict.”

“As federal and commercial bandwidth needs grow, the FCC and agencies are discovering new areas of political contention,” said Senior Research Fellow Brent Skorup of the Mercatus Center. “Some of the issues are technical, but the FCC and Congress haven’t settled on a single, best way to transfer spectrum to new users, whether commercial or federal. … Overlay auctions, incentive auctions, geographic sharing, unlicensed use, and real-time sharing have been proposed and tried, sometimes in combination, with varying amounts of success.” Another area of complexity is that federal law doesn’t allow agencies to sell spectrum rights, “which means agencies have little upside from sharing or transferring spectrum,” Skorup said. “If agencies were rewarded more, I think we’d see more win-win situations and many of the issues would clear up.”

DOD should be able to provide more clarity on what its future needs will be in the band, said Doug Brake, Information Technology and Innovation Foundation director-broadband and spectrum policy. “This is an area where even if you can’t achieve perfect certainty, you can let the auction price that in,” he said. “The aim of the auction isn’t to bring in the most revenue, but to discover who is most confident they can make the most value with the resource, certainty and all. That said, the FCC can and should take modest steps to make the licenses more valuable by setting up more process and expectations around the sharing.”