What’s New In 5G – April 2021 – Media, Telecoms, IT, Entertainment

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What’s New In 5G – April 2021


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The next-generation of wireless technologies – known as 5G – is
here. Not only is it expected to offer network speeds that are up
to 100 times faster than 4G LTE and reduce latency to nearly zero,
it will allow networks to handle 100 times the number of connected
devices, revolutionizing business and consumer connectivity and
enabling the “Internet of Things.” Leading policymakers -
federal regulators and legislators – are making it a top priority
to ensure that the wireless industry has the tools it needs to
maintain U.S. leadership in commercial 5G deployments. This blog
provides monthly updates on FCC actions and Congressional efforts
to win the race to 5G.

Regulatory Actions and Initiatives

Mid-Band Spectrum

  • The FCC takes additional action on
    Tribal entities’ requests to use spectrum in the 2.5 GHz band.

    • The FCC released an Order on March 11, 2021, granting two requests
      for waiver filed by the Turtle Mountain Band of Chippewa Indians
      regarding the definition of eligible Tribal lands for purposes of
      applying for 2.5 GHz band spectrum in the Rural Tribal Priority
      Window. Grant of the waivers will allow the Tribe to obtain 2.5 GHz
      licenses for trust lands in Roulette County, North Dakota, that are
      largely adjacent to the Tribe’s reservation and non-reservation
      trust lands around Trenton, North Dakota.

    • That same day, the FCC made publicly
      available a grant (from August 2020) of emergency special temporary
      authority to the Confederated Salish and Kootenai Tribes of the
      Flathead Nation
      to operate on unassigned 2.5 GHz spectrum
      during the COVID-19 pandemic.

    • In addition, on March 30, 2021, the
      FCC released three Orders granting additional requests for waiver
      related to the definition of Tribal lands. Grant of the waiver
      request to the Passamaquoddy Tribe will allow it to obtain
      a 2.5 GHz license for approximately 94,000 acres of trust lands
      that fall outside of the Tribe’s Pleasant Point and Indian
      Township reservations. Grant of the waiver request to the Middletown Rancheria of Pomo Indians of
      California
      will allow it to obtain a license for several
      parcels of fee lands owned by the Tribe that are adjacent to and
      near its reservation in Northern California. And grant of the
      waiver request to the Squaxin Island Tribe will allow it to
      provide service for several parcels of trust land in the Mason
      County and Thurston County, Washington, region, some of which are
      immediately adjacent to the Tribe’s reservation.


  • The FCC grants the first
    authorizations for mid-band spectrum to provide 5G services and
    prepares the band for commercial operations.

    • On March 12, 2021, the FCC released a
      Public Notice announcing the grant of
      applications for licenses in the 3.5 GHz band. A subsequent Public Notice with additional grants was also
      released on March 26, 2021. The auction, the first of mid-band
      spectrum to support next-generation 5G services, concluded in
      September 2020 and has been touted by FCC Acting Chairwoman Rosenworcel as
      “demonstrat[ing] US leadership in spectrum
      innovation.”

    • Relatedly, on March 9, 2021, the FCC
      released a Public Notice certifying Key Bridge as a
      Spectrum Access System for the 3.5 GHz band, which, among others,
      will coordinate use of the band. FCC Acting Chairwoman Rosenworcel
      applauded the certification and the progress
      made on the 3.5 GHz spectrum sharing regime, noting that “[i]t
      is exciting to see the rapid rise of the FCC’s Citizens
      Broadband Radio Service” and “[w]e are making history
      with this innovative band.”

    • On March 29, 2021, the FCC issued a
      Public Notice seeking comment on a Request for Partial Waiver submitted by the
      National Football League regarding the use of Citizen Broadband
      Radio Service (“CBRS”) devices. The NFL seeks authority
      to operate General Authorized Access CBRS units without connecting
      to a Spectrum Access System, in the event the team loses an
      Internet connection. Comments are due April 8, 2021, and reply
      comments are due April 15, 2021.


  • The FCC adopts rules that make
    spectrum in the 3.45-3.55 GHz band available for commercial
    services and seeks input on an auction of that spectrum.

    • On March 17, 2021, the FCC adopted an
      Order that makes 100 megahertz of spectrum in
      the 3.45-3.55 GHz band available for full-power commercial wireless
      services across the contiguous United States, while also ensuring
      that existing federal users can have access to the spectrum on a
      protected basis where and when they need it. In contrast to the draft Order that was released, the final
      Order, among other things, adopts 10-megahertz blocks for the band
      to promote wider participation in the auction of the spectrum.

    • On the same day, the FCC adopted a Public Notice that seeks comment on the
      procedures to be used for the auction of the 3.45-3.55 GHz band and
      proposes to commence bidding in early October 2021, consistent with
      its statutory objective to auction the spectrum by December 31,
      2021. The Public Notice generally proposes auction procedures that
      are consistent with those that have been used in recent FCC
      spectrum auctions. Comments on the Public Notice are due April 14,
      2021, and reply comments are due April 29, 2021.

High-Band Spectrum

  • The FCC grants an extension for
    public input on reallocating spectrum in the 12 GHz band for
    commercial wireless use.

    • On March 29, 2021, the FCC released
      an Order granting the Computer &
      Communications Industry Association, INCOMPAS, Open Technology
      Institute at New America, and Public Knowledge’s request for a
      30-day extension of the comment deadlines for the Notice of Proposed Rulemaking, which seeks
      comment on adding a new or expanded terrestrial mobile allocation
      to the 12.2-12.7 GHz (the “12 GHz”) band. The band is
      currently used for Direct Broadcast Satellite service,
      Multi-Channel Video and Data Distribution Service, and Fixed
      Satellite Service (space-to-Earth) limited to non-geostationary
      orbit systems. Comments and reply comments are now due May 7, 2021
      and June 7, 2021, respectively.

5G Networks and Infrastructure

  • The FCC announces a list of equipment
    and services that pose a national security risk to U.S.
    communications networks and provides preliminary cost estimates for
    removal and replacement.

    • The FCC released a Public Notice on March 12, 2021, announcing the
      publication of its “Covered List” of equipment and
      services that are deemed to pose an unacceptable risk to the
      national security of the United States. The list, which is attached
      as an appendix to the Public Notice and is available on the
      FCC’s website, includes certain equipment or services
      produced by the following entities, as well as their subsidiaries
      and affiliates: (1) Huawei Technologies Company, (2) ZTE
      Corporation, (3) Hytera Communications Corporation, (4) Hangzhou
      Hikvision Digital Technology Company, and (5) Dahua Technology
      Company. FCC Acting Chairwoman Rosenworcel explained that “[t]his list is a big step
      toward restoring trust in our communications networks” and
      “provides meaningful guidance that will ensure that as
      next-generation networks are built across the country, they do not
      repeat the mistakes of the past or use equipment or services that
      will pose a threat to U.S. national security or the security and
      safety of Americans.”

    • On March 25, 2021, the FCC released a
      Public Notice seeking comment on a Supply Chain
      Reimbursement Program Study and a preliminary Catalog of Eligible
      Expenses and Estimated Costs that will inform the FCC’s
      reimbursement program for providers that are required to remove
      equipment and services that pose a national security risk from
      their networks. The Public Notice also seeks comment on a
      preliminary List of Categories of Suggested Replacement Equipment
      and Services to aid with the replacement of covered equipment and
      services. Comments on all three documents are due April 26,
      2021.

    • FCC Commissioner Carr recently called for further action to address the
      threats posed by China by closing a security loophole that allows
      insecure devices to continue to be used in U.S. networks.
      Specifically, the FCC’s rules prohibit companies from
      purchasing suspect equipment using federal funds, known as
      Universal Service Funds, but does not prohibit them from using
      private funds to purchase and use that exact same
      equipment. He also called for the FCC to take action to ensure that
      devices made with forced labor do not enter the U.S. market.


  • The FCC solicits feedback on Open RAN
    networks.

    • On March 17, 2021, the FCC adopted a
      Notice of Inquiry (“NOI”) that seeks
      input on the current status and deployment of Open Radio Access
      Networks (“Open RAN”), which some parties assert are a
      potential path to drive 5G innovation, and virtualized network
      environments, domestically and internationally. Comments on the NOI
      are due April 28, 2021, and reply comments are due May 28,
      2021.

Other Spectrum and Infrastructure Matters

  • FCC Commissioner Carr suggests a
    roadmap for extending U.S. leadership in 5G.

    • At an event hosted by the American
      Enterprise Institute, FCC Commissioner Carr announced his 5G agenda, including plans on
      spectrum and infrastructure reforms. According to an FCC News Release issued on March 15, 2021, that
      plan includes auctions of spectrum in the 3.45 GHz and 2.5 GHz
      bands in 2021, allowing low-power operations in the 6 GHz band, and
      seeking comment on increasing the power levels for the 3.5 GHz band
      (see above). It also aims to auction additional spectrum in 2022
      and beyond in the 1300-1350 MHz, 42 GHz, and lower 3 GHz, 4.8 GHz,
      and 7 GHz bands.

    • With respect to infrastructure, the
      plan aims to produce updated broadband maps this year (the FCC recently announced broadband data will be collected
      directly from consumers), commence an auction of 5G Fund support next year, act on pending
      infrastructure reforms to drive down the costs of reaching rural
      areas, and expand tower crews needed to complete 5G builds through
      Commissioner Carr’s 5G jobs initiative, among other things.

In the Courts

  • T-Mobile West LLC v. City and
    County of San Francisco

    • On March 18, 2021, the federal
      District Court for the Northern District of California granted
      T-Mobile a significant victory over the City and County of San
      Francisco in T-Mobile’s challenge to the City’s failure to
      timely act on T-Mobile’s site modification applications under
      Section 6409 of the Spectrum Act, 47 U.S.C. § 1455(a) and the
      FCC’s Rules. T-Mobile filed the action after the City failed to
      act on multiple T-Mobile applications to modify existing wireless
      sites within the 60 days required by FCC rules, and T-Mobile
      notified the City that a series of applications were deemed granted
      under the FCC rules. Then, as allowed by the FCC’s rules,
      T-Mobile filed in federal court asking the Court to issue a
      declaratory judgment that the deemed granted notices were
      enforceable, and also asking the Court to order the City to issue
      permits to formalize the legal status of the applications. T-Mobile
      moved for a preliminary injunction and summary judgment.

    • The City opposed T-Mobile’s
      action, arguing that the Tenth Amendment prohibited Congress and
      the Court from ordering the City to take any action.

    • In its Order, the Court grants
      T-Mobile summary judgment on its Section 6409 claim, recognizing
      that T-Mobile’s applications were “Eligibly Facilities
      Requests” that do not substantially change the physical
      dimensions of the existing site, and therefore, under Section 6409,
      the City cannot deny the applications. In doing so, the Court also
      recognizes that the City failed to timely act on the applications
      that T-Mobile deemed granted.

      • Based on the Court’s holding that
        the City violated Section 6409(a), the Court holds that the
        applications deemed granted by T-Mobile “are and
        shall be treated as legal
        by [the City].”
        (Emphasis added). This is strong language that is broad in
        scope.

      • The Court rejects the City’s sole
        defense that Section 6409 violates the Tenth Amendment to the U.S.
        Constitution.


    • The Court also grants in part
      T-Mobile’s motion for injunctive relief. In doing so, the Court
      recognizes that in the FCC’s 2014 Order implementing Section
      6409, the FCC held that Section 6409 applicants could seek
      injunctive relief and that injunctive relief would be appropriate
      “in many cases in light of the balance of equities, including
      the public interest reflected in the statute of promoting rapid but
      responsible wireless facility deployment.”

      • This was an important holding by the
        Court, as the City argued strenuously that Section 6409 did not
        allow any relief beyond the deemed granted notice. The Court
        concluded that T-Mobile demonstrated that it would suffer
        irreparable harm if the City acted to prevent T-Mobile from making
        installations or modifications pursuant to the deemed granted
        applications.


    • The Court orders that (1) the deemed
      granted applications are “as effective as granted
      applications” as a matter of law, and (2) that the City is
      “estopped from imposing penalties in any way or preventing
      T-Mobile from proceeding with installations for T-Mobile’s
      deemed granted applications.” Although T-Mobile framed its
      motion as being for preliminary injunction, the Court’s remedy
      does not say it is not limited in time to the duration of this
      case.

    • The Court’s conclusions are
      strong and positive for T-Mobile and other entities relying on
      Section 6409 to deploy upgrades or collocations of new
      facilities.


  • City of Portland v. U.S.

    • As anticipated, on March 22, 2021,
      the local governments that appealed the FCC’s 2018 “Small
      Cell Order” and “Moratorium Order” filed a Petition
      for Certiorari, asking the Supreme Court to review the Ninth
      Circuit’s decision in City of Portland v. U.S., 969
      F.3d 1020 (9th Cir. 2020).

      • As we previously reported, in City of Portland, the
        Ninth Circuit affirmed the FCC’s orders, rejecting the local
        governments’ various arguments challenging the FCC’s
        clarifications of the “effective prohibition” language of
        Sections 253(a) and 332(c)(7)(B)(i)(II) of the Communications
        Act.


    • The Petition for Certiorari was
      docketed by the Supreme Court on March 25, 2021. Oppositions are due April 26,
      2021.


  • Appeal of the 5G Upgrade Order -
    League of California Cities v. FCC

    • On March 16, 2021, the FCC filed a
      motion asking the Ninth Circuit to hold in abeyance for 120 days
      the pending appeal of the FCC’s June 2020 Order clarifying the
      FCC’s rules implementing Section 6409(a) of the Spectrum Act
      (the so-called “5G Upgrade Order”). The FCC told the
      Court that holding the case in abeyance for 120 days would allow
      the “newly constituted Commission an opportunity to determine
      how it plans to proceed with respect to this case.” The
      request was unopposed.

    • The Court granted the motion on March
      19, 2021, vacating the prior briefing schedule and holding the case
      in abeyance until July 19, 2021.

Legislative Efforts

  • A bill was reintroduced in the Senate
    that would require NTIA to estimate the value of spectrum allocated
    for federal use.

    • On March 3, 2021, Senator Lee
      introduced the Government Spectrum Valuation Act. If enacted,
      the bill would require NTIA to estimate the economic value of
      spectrum between 225 MHz and 95 GHz that is allocated to federal
      entities. Similar bills were introduced in both the Senate and
      House during the 116th Congress.


  • A bill was introduced in the Senate
    that would establish a C-band auction reserve fund, which would be
    used to promote broadband connectivity.

    • On March 4, 2021, Senator Wicker
      introduced the Broadband Reserve Fund Act of 2021, which
      would require net proceeds from the recently concluded C-band
      auction to be deposited in a reserve fund at the Department of
      Treasury. The FCC or NTIA would be able to use the funds to, among
      other things, expand broadband access in unserved areas and
      minority communities, improve communications infrastructure, and
      secure the telecommunications supply chain.


  • A bill was introduced in the Senate
    that would create a grant program to expand the 5G workforce.

    • On March 25, 2021, Senator Wicker
      introduced the Improving Minority Participation and Careers in
      Telecommunications (IMPACT) Act.
      If enacted, the bill would
      establish a grant program that awards $100 million in grants to
      historically Black colleges or universities (“HBCUs”),
      Tribal colleges or universities (“TCUs”), or
      minority-serving institutions for the development of
      telecommunications workforce training programs. It would also
      require NTIA, by December 31, 2022, to award at least 30 percent of
      funds to HBCUs and at least 30 percent of funds to TCUs. FCC
      Commissioner Carr stated that the bill “would help create
      thousands of good-paying jobs while closing the digital divide and
      advancing our 5G leadership.”

Originally Published by Mintz, April 2021

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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