On June 14, 2018, the Wireless Telecommunications Bureau (“Bureau”) released a Public Notice announcing that it is accepting applications to modify existing licenses in the 38.6-40 GHz band (“39 GHz band”), consistent with the voluntary rebanding framework adopted in the Spectrum Frontiers Report and Order (GN Docket No. 14-177). As you may recall, under this framework, 39 GHz licenses (which were paired 50 by 50 megahertz channels licensed by RSAs and then EAs) are to be rebanded for 200 megahertz channels licensed by PEAs. The Bureau is now accepting modification applications to facilitate the efficient use of the mmW spectrum by existing licensees for 5G, Internet of Things (“IoT”), and other advanced services in advance of an auction of new licenses for flexible use in the 39 GHz band.

The Bureau emphasizes that for purposes of streamlining application processing, licensees may only request modifications that reflect the amount of their existing holdings, i.e., they cannot apply for modifications to their licenses that cover more MHz-Pops within each PEA than what they currently hold in the 39 GHz band. Applications to modify will be accepted until February 1, 2019, using the following criteria and processes:

  1. The Bureau will accept three types of modification applications: 1) to swap existing holdings for certain unassigned blocks within the 39 GHz band without the agreement of any other incumbent licensee; 2) to swap existing holdings for other existing holdings and unassigned blocks within the 39 GHz band with the agreement of other incumbent licensees; and/or 3) to cancel its RSA licenses that fall wholly within a PEA in block(s) held by the same incumbent in that PEA, resulting in an unencumbered PEA license block(s).
  2. The Bureau will accept an application only if it increases the contiguity of holdings within the 39 GHz band. For these purposes, the Bureau interprets the FCC’s reconfiguration policy to view each 50 MHz block as contiguous only with the adjacent 50 MHz block within an even 100 MHz block; each 100 MHz block is contiguous only with the adjacent 100 MHz block within an even 200 MHz block; and each 200 MHz block is contiguous with any adjacent 200 MHz block. Blocks must be contiguous at lower levels before they will be considered contiguous at higher levels.
    • The Bureau will accept modifications that result in the incumbent holding licenses for even 100 MHz channels, permitting consolidation in even the smallest existing licensed channel blocks.
  3. The Bureau will only accept applications for unassigned blocks adjacent to an incumbent licensee’s holding if the target spectrum block either could not be requested by another incumbent licensee or the licensee requesting that block has secured the other licensee’s agreement. The Bureau will evaluate whether another incumbent licensee could request a particular block first at the lowest level of contiguity and then at each ascending level – the Bureau anticipates that most licensees will be able to consolidate some of their spectrum holdings into 100, 200, or 400 MHz blocks in some areas without the transaction costs of an agreement.
    • If there is an entirely vacant 200 MHz channel, however, it would only be available to a licensee with an adjacent 200 MHz block, but if it is immediately adjacent to two different licensees with 200 MHz blocks already, then neither can request the channel without an agreement.
  4. The Bureau enacts the following processes to handle encumbrances:
    • PEAs – A PEA licensee may treat an RSA-occupied spectrum block as unassigned, as long as it understands that the PEA licensee will not be authorized to operate in the RSA-occupied service area. Incumbent PEA licensees with encumbered PEA licenses will only be allowed to add unassigned blocks with encumbrances in aggregate that are at least as great as the blocks exchanged.
      • A PEA licensee can opt to exchange a block not encumbered by an RSA licensee for an adjacent block with an RSA licensee, whose operations it will have to protect, or it can take a more encumbered license area in exchange for a less encumbered block.
      • A PEA licensee cannot upgrade to an RSA-free block or an embedded RSA license that is less encumbered that the block currently held.
    • RSAs – An RSA licensee that is co-channel with any PEA licensee cannot unilaterally move to another block. An RSA licensee that is not co-channel with any PEA licensee can apply to move unilaterally into an adjacent channel if that channel is also not co-channel, and in that case the RSA licensee retains the same geographic contours of the RSA license it held in the channel it is swapping.
  5. The Bureau will accept plans that are agreed to by all incumbent licensees within a relevant area as long as the plan increases the amount of contiguous spectrum for at least one of the licensees and does not increase the aggregate MHz-Pops held by those licensees in the relevant area. These plans may include voluntary swamps among incumbents, use of the unassigned 39 GHz blocks, and license swaps from a subset of licensees in an area (provided they meet the same criteria noted above and do not infringe on other licensees’ applications for contiguous blocks).
    • Defines the “relevant area” as a PEA, unless any RSA licenses in the PEA cross that PEA boundary, in which case the adjacent PEAs that the RSA license overlaps must also be included in the area.
    • Defines “relevant licensees” as both PEA and RSA license holders in the relevant area.

The Bureau notes that while this approach is voluntary, it is the “hope and expectation” that all licensees will convert their licenses using the new licensing plan.

Detailed filing instructions can be found at https://www.fcc.gov/wireless/support/universal-licensing-system-uls-resources/39ghz-channel-swap-instructions.

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