Greater Federal coordination may not hasten 5G rollout

Background

The dilemma facing the FCC is well known. 5G networks can't reach their potential until policymakers release more spectrum — the invisible pipes that carry data through the airwaves — for commercial use.

That's a tricky proposition in the U.S. Federal agencies like the U.S. Department of Defense hold much of the "beachfront" spectrum, particularly in the midband frequencies that are so critical for 5G. These agencies have been reluctant to part with their spectrum or share with commercial operators.

In theory, we already have processes to mediate the competing interests of federal and commercial users. As the nation's primary spectrum regulator, the FCC establishes rules governing who can use spectrum bands and under what conditions.

The NTIA, a subagency of the U.S. Department of Commerce, regulates and manages spectrum used by federal agencies. The NTIA relies on the input of the Interdepartment Radio Advisory Committee, which includes representatives from 19 federal agencies and an FCC liaison.

In 2003, the NTIA and FCC entered into a memorandum of understanding to govern coordination between federal and nonfederal users.³ The NTIA also provides input in FCC spectrum proceedings.

But that process has broken down in recent years. Most recently, the Federal Aviation Administration launched a media blitz and congressional lobbying campaign claiming that 5G in the C-band (3.7-4.2 gigahertz) would disrupt radio altimeters operating in a different band more than 200 megahertz away. The timing was highly irregular. The FAA voiced concerns⁴ years after the FCC released its C-band rules⁵ and only a month before the scheduled date for deployment in major markets.

The FAA's behavior delayed the launch of 5G in the C-band, and that delay economically injured wireless carriers that spent billions of dollars to buy the spectrum at auction. Meanwhile, the technical basis for the FAA's complaint was widely seen as meritless.

In a similar fight over the 24 GHz band, the National Aeronautics and Space Administration and the National Oceanic and Atmospheric Administration raised interference concerns years after the FCC adopted service rules and only a few months before the auction was set to begin. Here again, while the federal agencies waged their war in the press, they were conspicuously absent during the FCC's actual rulemaking.

The NTIA administrator backed the FCC's decision to move ahead with the auction at great political expense, ultimately resigning shortly thereafter.⁶ Other recent disputes involving the U.S. Department of Transportation and the Department of Defense tell similar stories.⁷

Diagnosing Disfunction

What might explain the food fights that now dominate 5G policymaking? While that question draws strong and diverse opinions, they ultimately boil down to two competing hypotheses.

The first blames the intransigence of federal users unwilling to share spectrum on reasonable terms. Former FCC Commissioner Michael O'Rielly held that view.⁸ According to O'Rielly, mission-focused federal agencies, especially the Department of Defense (DoD), which is the largest holder of the most ideal mid-band spectrum, are exceptionally reluctant to part with one single megahertz. Simply put, every excuse, delay tactic, and political chit is used to prevent the repurposing of any spectrum.⁹

The second hypothesis, often framed in the passive voice, attributes interagency dysfunction to a suboptimal process. That was largely the conclusion of a June 2021 report from the Government Accountability Office.¹⁰ The GAO report included 11 recommendations to harmonize U.S. spectrum policymaking, including updating the 2003 memorandum of understanding and adopting processes for resolution, "particularly when consensus cannot be reached."¹¹

Rosenworcel's promise to bring a whole-of-government approach to spectrum policy seems to reflect philosophical alignment with the second view.

Under her framework, the FCC and the NTIA will work together to implement several reforms: (1) meet monthly on spectrum planning; (2) update the 2003 memorandum of understanding; (3) develop a national spectrum strategy; (4) standardize technical criteria and processes to evaluate spectrum sharing; and (5) increase FCC participation in NTIA working groups and vice versa.¹²

Greater Coordination: Puts and Takes

Will Rosenworcel's pivot to greater diplomacy pay off? It's hard to say at this stage. With only a general framework in place, many critical details remain outstanding. But it's not too early to define success.

For the U.S. to lead in 5G, more spectrum must be made available for commercial use as quickly as possible — without major federal encumbrances, last-minute surprises or politically driven engineering. Adopting a more elaborate process for its own sake would be a hollow victory: White papers and meetings alone won't serve the public without decisive action to free up spectrum bands when the technical analysis demands it. 

There's much to like in Rosenworcel's framework. Engineering standards developed in advance can reduce the odds of eleventh-hour fire drills and hysteria that have animated past disputes. Adopting receiver performance standards, as the FCC plans to explore in an upcoming notice of inquiry,¹³ can help pressure-test federal incumbents' predictions of interference.

Through increased coordination, the NTIA and FCC can settle on notional power limits, out-of-band emissions and other technical values. These presumptions can help inform engineering analyses before the FCC adopts service rules.¹⁴ Reforms like these foster predictability — a hallmark of good government. 

At the same time, vigilance remains warranted. Implementing the laundry list of interagency coordination reforms could drag on for years and may not be operational until it's too late. Federal incumbents acting in bad faith might weaponize the increase in process to kill reform through delay. More order and procedure won't always stop federal agencies from publicly litigating their grievances and sowing confusion in the press.

And success depends on political courage. Will the NTIA act as an honest broker, rejecting federal incumbents' demands when they are objectively unreasonable? Will principals at the executive branch back the FCC when push comes to shove?

Conclusion

If Rosenworcel's emphasis on procedural regularity does the trick, the U.S. will be better off for it. But the outcome may prove more complicated. As old hands in Washington know, good politics isn't always good policy. Restoring effectiveness and trust in the federal interagency process means acting decisively when the facts call for it, even when it comes at the cost of upsetting long-entrenched interests.
 

Authored by Arpan Sura and J. Ryan Thompson.

This article was previously published in Law360.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

References

1 Press Release, FCC, NTIA Establish Spectrum Coordination Initiative (Feb. 15, 2022), https://www.fcc.gov/document/fcc-ntia-establish-spectrum-coordination-initiative ("FCC/NTIA Coordination Press Release").

2 See e.g., Jimm Phillips, Davidson Commits to 'Evidence-Based' Spectrum Evaluations, Improved FCC Talks, Communications Daily (Feb. 17, 2022), https://communicationsdaily.com/article/view?search_id=531329&id=1164688&BC=bc_6228e0ac0fd32; Maria Curi, Spectrum Regulators' Effort to Work Together Wins Plaudits, Bloomberg Government (Feb. 15, 2022), https://about.bgov.com/news/spectrum-regulators-effort-to-work-together-wins-plaudits/.

3  Memorandum Of Understanding Between The Federal Communications Commission And The National Telecommunications And Information Administration (Jan. 31, 2003), https://www.ntia.doc.gov/files/ntia/publications/fccntiamou_01312003.pdf.

4 Risk of Potential Adverse Effects on Radio Altimeters, SAIB AIR-21-18 (Nov. 2, 2021),  https://rgl.faa.gov/Regulatory_and_Guidance_Library/rgSAIB.nsf/dc7bd4f27e5f107486257221005f069d/27ffcbb45e6157e9862587810044ad19/%24FILE/AIR-21-18.pdf .

5 Expanding Flexible Use of the 3.7 to 4.2 GHz Band, Report and Order and Order of Proposed Rulemaking, 35 FCC Rcd 2343 (2020), https://ecfsapi.fcc.gov/file/0303046335999/FCC-20-22A1.pdf.

6 Kelcee Griffis, Trump Admin Rift Over 5G Policy Leaves Airwaves in Limbo, Law360 (June 28, 2019), https://www.law360.com/articles/1173991/trump-admin-rift-over-5g-policy-leaves-airwaves-in-limbo.

7 Jessica Wehrman, Demand for Spectrum Pits FCC Against Other Agencies, Roll Call (Jan. 10, 2022), https://rollcall.com/2022/01/10/demand-for-spectrum-pits-fcc-against-other-agencies/; Monica Alleven, FCC OKs Ligado's L-Band Plan Amid DoD Opposition, Fierce Wireless (Apr. 20, 2020), https://www.fiercewireless.com/regulatory/fcc-oks-ligado-s-l-band-plan-amid-dod-opposition.

8 Letter from FCC Commissioner Michael O'Rielly to President Donald Trump (Apr. 8, 2020), https://www.fcc.gov/document/cmr-orielly-letter-president-trump-regarding-5g-mid-band-spectrum.

9 Id.

10 Government Accountability Office, Spectrum Management – Agencies Should Strengthen Collaborative Mechanisms and Processes to Address Potential Interference, Report to the House Committee on Science, Space, and Technology (June 2021), https://www.gao.gov/assets/gao-21-474.pdf.

11 Id. at 16-24.

12  FCC/NTIA Coordination Press Release.

13 Jessica Rosenworcel, Chairwoman, FCC, Remarks at the Mobile World Congress: New Frontier of Partnerships (Mar. 1, 2022), https://www.fcc.gov/document/chairwoman-rosenworcel-remarks-mobile-world-congress-2022.

14 That approach was taken before the 3.45 GHz auction, where the Department of Defense's analysis assumed 5G operations would follow the same technical rules the FCC had developed for similar spectrum bands. Department of Defense, Workbook Information File In Support of the 3450-3550 MHz Band (July 23, 2021), https://www.ntia.doc.gov/files/ntia/publications/dod_3.45_ghz_workbook_explanation_letter_210723.pdf.