On September 30, 2021, the FCC adopted an Order on Reconsideration and Eighth Further Notice of Proposed Rulemaking (“Order” and “NPRM” respectively) at the September Open Meeting. The Order vacates the 2020 Sixth Report and Order that adopted a state-by-state leasing framework for the 4.9 GHz (4940-4900 MHz) band and the NPRM proposes and seeks comment on a nationwide framework for the 4.9 GHz band.
Order on Reconsideration
In the Order, the FCC vacates its Sixth Report and Order, which adopted a state based framework for the 4.9 GHz band. Under the FCC’s rules, in order to be eligible for a 4.9 GHz license, an entity is required to provide public safety services. Under the adopted framework for the band, however, states, through a single statewide entity designated as the State Lessor had the option to lease spectrum access to state and local entities, whether public safety or non-public safety, as well as to commercial and other private entities in their jurisdictions. In addition, State Lessors were permitted to use the band for non-public safety purposes themselves. In December 2020, several entities filed Petitions for Reconsideration, arguing that the framework failed to provide for current and future public safety use of the band.
In the Order, the FCC finds that the framework lacks sufficient safeguards to protect public safety access nationwide and failed to ensure that State Lessors, public safety licensees, and lessees would have a clear set of rules governing access to the band. Specifically, the FCC concludes that: 1) the lack of a single set of nationwide rules governing the introduction of non-public safety operations in the band, particularly as the relate to priority, preemption, and interference protection, creates confusion within the public safety community and undermines the informal coordination model currently used in the band; 2) a state-by-state leasing framework would have resulted in a patchwork of different rules, process, and terms governing the use of the spectrum, undermining the FCC’s public safety goals; and 3) that a single set of nationwide rules governing public safety spectrum is critically important to ensure cross-jurisdictional compatibility, predictability of access, and a single equipment market to bring down costs.
The Order also lifts the licensing freeze for the 4.9 GHz band for incumbents wishing to modify existing licenses or license new permanent fixed sites.
Eighth Further Notice of Proposed Rulemaking
The NPRM seeks comment on revising the 4.9GHz band structure to establish a nationwide framework for coordinating access to the band and explores potentially allowing non-public safety use of the band. The NPRM broadly seeks comment on three topics. First, the NPRM seeks comment on how to ensure public safety use of the band, including: 1) how to ensure public safety users have efficient and interference-free access to the band, particularly so that they’re protected from harmful interference; 2) whether to establish a database, either within or separate from ULS, that would contain consistent and reliable information about what spectrum is available and where and how it is being used; 3) whether to adopt technical standards that would promote interoperability within the band; and 4) affording public safety licensees priority access to the 4.9 GHz band, with the ability to preempt any non-public safety operations.
Second, the NPRM seeks comment on how to foster greater public safety use of the band, including: 1) whether to require formal frequency coordination to support interference protection and increase public safety confidence; 2) designating a single entity to serve as a nationwide band manager that would develop a nationwide framework for the band; 3) whether to continue to use a voluntary regional planning network or whether to require Regional Planning Committees to submit a regional plan; 4) ways to incentivize public safety use of the latest commercially available technologies, particularly 5G; and 5) any other proposals from the Sixth Further Notice that should be considered.
Finally, the NPRM seeks comment on facilitating non-public safety access with safeguards to protect public safety uses, including: 1) possible sharing mechanisms, non-public safety licensing approaches, and leasing regimes that could be used to provide shared access to the band for non-public safety users; and 2) different licensing regimes for non-public safety users, such as non-exclusive licensed access, granting exclusive use licenses, or unlicensed access.
Acting Chairwoman Rosenworcel, Commissioner Starks, and Commissioner Simington issued separate statements supporting the item. Commissioner Carr issued a separate statement concurring in part and approving in part.
Comments will be due 30 days after publication in the Federal Register. Reply Comments will be due 60 days after publication in the Federal Register.
On September 9, 2021, a Draft Order on Reconsideration and Eighth Further Notice of Proposed Rulemaking (“Draft Order” and “Draft NPRM” respectively). The following substantive changes have been made from the draft document:
- ¶ 25 – the FCC directs bureaus to implement changes to the 4.9GHz Band Freeze within 30 days of the adoption of the Order.
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