On January 15, 2021, the FCC issued a Notice of Proposed Rulemaking (“NPRM”) requesting comments on how to maximize efficient usage of the 500 megahertz of mid-band spectrum between 12.2-12.7 GHz (“12 GHz band”).  The 12 GHz band is currently allocated for Broadcasting Satellite Service (“BSS”) (also known as Direct Broadcast Satellite (“DBS”)), Fixed Satellite Service (“NGSO FSS”), and Fixed Service, which are co-primary, though NGSO FSS and Fixed Services are allocated on a non-harmful interference basis with respect to BSS.  Three services are authorized and operating in the band:  DBS providers under the BSS allocation, Multi-Channel Video and Data Distribution Service (MVDDS) licensees under the Fixed Service allocation, and NGSO licensees under the NGSO FSS allocation.  In recent years, the FCC has expanded use of the 12 GHz band on a case-by-case basis to include the provision of 5G services through the granting of several NGSO FSS market access applications, which proposed to use the 12 GHz band, among others, to provide consumers with expanded access to 5G.

In the NPRM, the FCC seeks comment on two possible approaches for expanding use of the 12 GHz band:  increasing terrestrial use of the shared band or maintaining the current framework.  The FCC seeks comment on the costs and benefits of each approach, as well as whether it is feasible to add additional or expanded spectrum rights to the 12 GHz band without causing harmful interference to incumbent licenses, and, if so, whether the public interest weighs in favor of taking that step.

Increasing Terrestrial Use of the Shared Band

First, the FCC seeks comment on the possibility of increasing shared use of the band, in particular by adding a terrestrial mobile allocation, without causing harmful interference to incumbent licensees.  The FCC is primarily concerned with whether it can feasibly add a mobile service allocation throughout the 12 GHz band, whether it is technically achievable for these competing services to coexist, and what mechanisms the FCC might consider in facilitating coexistence.  First, the FCC seeks comment on the technical aspects of increasing terrestrial use of the band, including whether two-way communications should be permitted, what technical parameters are appropriate for new terrestrial operations, and how to protect the incumbent licensees if new ones are added.  Second, the FCC seeks comment on three approaches to assigning new terrestrial service rights: (1) modifying the licenses of existing licensees under section 316 of the Communications Act, (2) auctioning off overlay licenses in the band, and (3) authorizing underlay use of the band.  Finally, if coexistence is possible without harmful interference, the FCC seeks comment on how to best facilitate sharing, including whether certain approaches to sharing depend on results of technical analysis and whether it should adopt one or multiple methods of sharing including:  service-rule sharing, geographic sharing, dynamic sharing between full power terrestrial and satellite, and opportunistic use of the band.

Maintaining the Current Framework

Alternatively, the FCC proposes to maintain the current framework.  In consideration of this proposal, the FCC seeks comment on whether the costs of accommodating new services in the band, including the potential for adverse impact or additional burden on existing services, exceed the benefits.  In addition, the FCC notes that it has made a substantial amount of spectrum available for 5G services in the past five years, which will likely have an effect on the need to expand the use of the 12 GHz band for this purpose.

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