FCC OKs State Licensing of 4.9 GHz Band 3-2

The 4.9 GHz band order permits one statewide licensee (see 2009090048) per state “to lease some or all of its spectrum rights to third parties, including commercial, critical infrastructure, and other users, thus making up to 50 megahertz of mid-band spectrum available for more intensive use.” O’Rielly got a concession eliminating states that divert 911 fees from participating.

O’Rielly hoped the band would be reallocated for 5G but had to “live within the rather, let’s say, interesting approach taken.” The FCC could be creating problems regulators will have to address in the future, and it’s not clear the approach will work, he said. O’Rielly has sought a focus on the underutilized spectrum (see 2004090047). “No commission should let spectrum essentially lay fallow based on the notion that someday the allocation just might possibly be used widely,” O’Rielly said. “The messages of, ‘We intend to use it if certain conditions are met or it will be needed someday’ are no longer credible or sufficient.”

The FCC's approach came “out of the blue,” Starks said. “It’s black letter law that agencies must provide adequate notice and an opportunity to comment before adopting a rule,” he said: “At no point have we ever proposed effectively delegating the commission’s spectrum authority over the band to state governments.” The item got worse after it was circulated, he said, citing the language on states that divert 911 fees. “This proceeding has never sought comment on that issue or anything like it," he said.

The approach “has virtually no support in the record” and opposition from wireless carriers and public safety officials, Rosenworcel said. “We clear the way to kick first responders off this spectrum and then cede this agency’s authority over the band to state licensees, who will be empowered to lease these airwaves to third parties to generate revenue,” she said: “What a mess.”

The order “threatens to do long-term damage to public safety communications,” Rosenworcel said. “By breaking up this band into a patchwork of state leases, we will further fragment the equipment market, raise costs and decrease the likelihood of interoperable communications.” The FCC “will not encourage new investment in the band,” she said: The approach “will only fragment these airwaves on a state-by-state basis. There will be no consistent and reliable information about what spectrum is available where or how it is being used.”

Chairman Ajit Pai said the order will provide needed spectrum for utilities, other critical infrastructure companies and wireless ISPs. It will help “develop a broader equipment ecosystem that will help current public safety licensees and address one of the primary problems facing the band,” he said. WISPs may be able to easily retune equipment used in other bands to “quickly deploy inexpensive, commercial-off-the-shelf equipment to rural and unserved areas to help bridge the digital divide,” Pai said.

The National Public Safety Telecommunications Council is disappointed, emailed Executive Director Marilyn Ward. “Under the FCC’s plan, there is no certainty that public safety needs will be met, based on the decisions made in each state,” she said: “The plan promotes a profit motive at each state rather than assuring adequate public safety access to the band. The marketplace model simply does not work for public safety which is a government responsibility even if it operates at a net loss.”

“The FCC took this action while failing to provide sufficient notice of its actions,” APCO and other public safety groups said. “With public safety professionals facing unprecedented national emergencies and natural disasters, the timing of the majority’s action is especially unfortunate and misguided.” The International Association of Chiefs of Police, International Association of Fire Chiefs, Major Cities Chiefs Association and Major County Sheriffs of America were among those that signed on.

“The 4.9 GHz band, while currently under-utilized, contains enormous potential to provide more expansive support of public safety communications,” said Joan Marsh, AT&T executive vice president-regulatory and state external affairs. “Informal coordination requirements have limited the spectrum band's usage to date, and we appreciate the FCC’s efforts to consider ways to expand its use while ensuring the spectrum remains allocated to public safety.”

The Wireless ISP Association said the 3.45-3.55 and 4.9 GHz items promise to provide sub-6 GHz “greenfield spectrum” otherwise “hard to come by.”

O’Rielly has raised 911 fee diversion repeatedly, and other commissioners praised his work in comments on the NOI. Consumers expect states to use such fees they pay for building and operating emergency communications systems, O’Rielly said. “No matter how meritorious that other spending may be in a few limited cases, we all know the fungible nature of state taxes and fees means that these state diverters could otherwise cut spending elsewhere or raise taxes to meet their funding needs for their non-911 programs.”

“State governments erode public trust and safety when they divert millions of dollars collected from wireless consumers intended to maintain and enhance our nation’s 911 system,” said CTIA Vice President-Regulatory Affairs Matt Gerst. He said CTIA will work with the FCC to "identify new ways to address the problem.” Ward said NPSTC supports issuing the NOI and will file comments.