FCC's "Unified Jurisdiction" over Commercial Spectrum Supports its 5.9 GHz Order

In January 2022, the D.C. Circuit will hear arguments in a case challenging the FCC's 2020 decision to repurpose spectrum in the 5.9 GHz band for flexible unlicensed wireless use, including Wi-Fi. The court ought to uphold the 5.9 GHz Band Order. Despite strong opposition to the order by the U.S. Department of Transportation (DoT) and by private litigants, the Commission's decision to repurpose 45 megahertz for unlicensed Wi-Fi was based solidly on the agency's delegated authority over commercial spectrum allocations. It's also good policy. The FCC's order will help realize the full economic and social benefits of next-generation Wi-Fi 6 technology. 

In Intelligent Transportation Society of America v. FCC, one of the questions the D.C. Circuit will address is whether the Commission's 2020 decision failed to comply Section 5206(f) of the 1998 Transportation Equity Act for the 21st Century (TEA). According to a court brief that was filed by private litigants on November 19, the Commission didn't consult sufficiently with the DoT regarding spectrum needs for the operation of intelligent transportation systems in the 5.9 GHz band. However, TEA Section 5206(f) was directed toward an FCC rulemaking that was to be completed before January 1, 2000. And the Commission did that. Nothing in the TEA alters the Commission's jurisdiction over commercial spectrum or its authority to issue the 5.9 GHz Order. 

In U.S. v. Southwest Cable Company (1968), the Supreme Court described Congress's establishment of the FCC "to serve as the single Government agency with unified jurisdiction and regulatory power over all forms of electrical communications, whether by telephone, telegraph, cable, or radio." The Commission's power to "prescribe the nature of the service to be rendered by each class of licensed stations," "assign bands of frequencies to the various classes of stations," and make rules and regulations necessary to carry out such purposes is contained in Sections 303(b), -(c), and –(g) of the Communications Act. Also, Section 303(r) authorizes the Commission to "generally encourage the larger and more effective use of radio in the public interest." 

The FCC exercised this considerable authority over spectrum when it reallocated the lower 45 megahertz of the 5.850-5.925 GHz band for unlicensed use and reassigned the upper 30 megahertz of the band for vehicle communications. Public policy reasons for supporting that reallocation were offered by Free State Foundation President Randolph May and Senior Fellow Andrew Long in public comments filed in the 5.9 GHz band proceeding in March 2020. 

 

Both before and after the Commission approved its 5.9 GHz Band Order, the DoT publicly opposed the reallocation of spectrum for unlicensed Wi-Fi use. DoT claimed future Wi-Fi use in the lower part of the band causing potential out-of-band interference with transportation-related communications. But the FCC's order included measures to prevent such potential interference. The Commission has recognized expertise in spectrum engineering matters and in adjudicating disputes over alleged signal interference claims.

 

Regrettably, the DoT's attempts to stall or undo the Commission's implementation of commercial spectrum policy fits a disturbing pattern. Over the last few years, executive branch agencies – such as the Department of Commerce, the Department of Defense, and the Federal Aviation Administration (which is housed within the DoT) – have tried to undermine the FCC's decisions regarding commercial spectrum allocations intended to advance 5G and Wi-Fi 6 networks. And although the DoT never denied the Commission's authority over commercial spectrum reallocation decisions, private litigants have continued the fight over the 5.9 GHz band.

A decision by the D.C. Circuit to uphold the 5.9 GHz Order would constitute a small but helpful step toward vindicating the FCC's "unified jurisdiction and regulatory power" over commercial spectrum from interference by other federal agencies. 

FCC Should Finalize Rules for Spectrum Use in the 5.9 GHz Band

This month of July 2023, press outlets such as Communications Daily and FierceElectronics have reported on the fact that the FCC has not yet issued final rules that it proposed more than two-and-a-half years ago regarding use of the 5.9 GHz band. The Commission also has received ex parte filings regarding the lack of final rules. To date, the Commission has only granted some waivers for use of the band. The Commission should move expeditiously to finalize rules for use of 5.9 GHz band spectrum.

The FCC put a lot of work into its November 2020 order and proposed rulemaking that reallocated 45 MHz of spectrum in the 5.9 GHz band for unlicensed use. Indeed, the Commission carried out its work in the face of unusual public opposition from the Department of Transportation. The Free State Foundation filed public comments supporting the agency proposal that subsequently was adopted by the Commission in the 5.9 GHz Order. And FSF Senior Fellow Andrew Long wrote a November 2022 Perspectives from FSF Scholars, "The FCC's 5.9 GHz Proposal Would Advance Both Wi-Fi and Vehicle Safety," in support of the reallocation of the spectrum for unlicensed use. 

 

The Commission also put a lot of work in its successful defense of the 5.9 GHz Order at the D.C. Circuit in Intelligent Transportation Society of America v. FCC. Mr. Long wrote about that decision in an August 2022 blog post. The court's decision vindicated the FCC's primacy among federal agencies on commercial spectrum policy. 

 

The FCC ought to now finish what it started in the November 2022 order and proposed rulemaking and promote maximal value and use of the 5.9 GHz band. Clearing the decks on the 5.9 GHz band also would enable to the Commission to devote more of its attention to licensing other spectrum bands. 

D.C. Circuit Unanimously Affirms the FCC's 5.9 GHz Band Order

Earlier today, in a development that will benefit WiFi users and make way for modern wireless vehicle safety capabilities, the U.S. Court of Appeals for the District of Columbia Circuit unanimously affirmed the Commission's November 2020 Order repurposing 45 MHz of fallow spectrum in the 5.9 GHz band for unlicensed use.

In a Statement, NCTA – The Internet & Television Association called the court's decision in Intelligent Transportation Society of America v. FCC "an enormous victory for American consumers," one that will lead to "even more reliable high-speed Wi-Fi and access to next-generation automotive safety applications."

Image by Jagathish Saravanan

In 1999, the FCC dedicated 75 MHz of beachfront spectrum to a proprietary vehicle safety technology that never lived up to its promise. Over twenty years later, the 5.9 GHz Order put that valuable wireless capacity to its highest and best use, making 30 MHz available for successor intelligent transportation systems technologies and repurposing the lower 45 MHz for WiFi and other unlicensed services.

Free State Foundation President Randolph May and I filed comments in support of the FCC's proposal. And in a Perspectives from FSF Scholars published shortly before the Commission adopted the 5.9 GHz Order, I argued that it represented "a fresh approach to this vastly underutilized spectrum that advances both public safety and the capabilities of WiFi networks."

Regrettably, in one of several recent high-profile instances of a breakdown in interagency spectrum coordination efforts necessitating process reform, the Department of Transportation raised objections to the Commission's proposal outside of established channels.

Eventually, several interested parties challenged the 5.9 GHz Order in court.

As Free State Foundation Director of Policy Studies and Senior Fellow Seth Cooper explained in a December 2021 post to the FSF Blog, consistent with the Supreme Court's 1968 decision in U.S. v. Southwest Cable Company, "[a] decision by the D.C. Circuit to uphold the 5.9 GHz Order would constitute a small but helpful step toward vindicating the FCC's 'unified jurisdiction and regulatory power' over commercial spectrum from interference by other federal agencies."

Today's decision does just that. In response to petitioners' claims that the 5.9 GHz Order "was arbitrary and capricious because it violated the Transportation Equity Act," the D.C. Circuit succinctly responded as follows: "It was not."

Specifically, the court held that:

[T]he Transportation Equity Act did not transfer away from the FCC its broad authority to manage the spectrum related to intelligent transportation systems. Instead, as the FCC noted, it simply required the FCC to account for the Department of Transportation's views and the needs of intelligent transportation systems when it does so. The FCC did that here.

Spectrum Matters Matter

I know it's a somewhat cutesy title. But spectrum matters do matter. Now more than ever with burgeoning demand for various spectrum-dependent services.

On October 25, 2018, President Donald Trump issued a Presidential Memorandum on Developing a Sustainable Spectrum Strategy for America's Future. This is a welcome development if only because it elevates the priority to be placed on spectrum matters within the Trump Administration.

The memorandum explains that additional spectrum access is not only important for the U.S. economy, especially with 5G wireless technology on the horizon, but it is also important for protecting national security. Given the growing spectrum demand, President Trump recognized that the U.S. must focus spectrum matters with some sense of urgency:

In the growing digital economy, wireless technologies expand opportunities to increase economic output of rural communities and connect them with urban markets, and offer safety benefits that save lives, prevent injuries, and reduce the cost of transportation incidents. American companies and institutions rely heavily on high-speed wireless connections, with increasing demands on both speed and capacity. Wireless technologies are helping to bring broadband to rural, unserved, and underserved parts of America. Spectrum-dependent systems also are indispensable to the performance of many important United States Government missions. And as a Nation, our dependence on these airwaves is likely to continue to grow.

Those demands have never been greater than today, with the advent of autonomous vehicles and precision agriculture, the expansion of commercial space operations, and the burgeoning Internet of Things [IoT] signaling a nearly insatiable demand for spectrum access. Moreover, it is imperative that America be first in fifth-generation (5G) wireless technologies — wireless technologies capable of meeting the high-capacity, low-latency, and high-speed requirements that can unleash innovation broadly across diverse sectors of the economy and the public sector.

To the point that timeliness matters, the presidential memorandum requires federal agencies, including the National Telecommunications Information Administration and the FCC to report within 180 days "on the status of existing efforts and planned near- to mid-term spectrum repurposing initiatives."

NTIA and the FCC are to be commended for their efforts during the last two years to make more spectrum available to enable the offering of innovative new services. So, to suggest that the Presidential Memorandum should spur the affected agencies to act with even greater dispatch is not to be critical.

Here I want to take note of two spectrum bands, by way of example, that are the subject of repurposing initiatives that hold the promise, if resolved in a timely manner, of making spectrum available that can be used to meet the growing demand for wireless services and for what the memorandum calls the "burgeoning Internet of Things."

First, the 5.9 GHz band. In 1999, the FCC assigned the 5.9 GHz band to Dedicated Short Range Communications (DSRC), which was intended to be used for vehicle-to-vehicle safety communications. But in the almost two decades since, the spectrum has remained largely unused for its intended purpose, while automotive safety technologies have been developed in the marketplace using non-5.9 GHz frequencies. Even automakers have stated in comments filed with the Department of Transportation and the FCC that they are moving beyond the DSRC technology to other non-DSRC automotive safety wireless technologies.

On October 29, 2018, the FCC released a report on its first of three phases for testing to determine if Wi-Fi can operate in the 5.9 GHz band without interfering with DSRC. In part the report stated: "We recognize there have been a number of developments since the three-phase test plan was announced in 2016 — such as the introduction of new technologies for autonomous vehicles, the evolution of the Wi-Fi standards, the development of cellular vehicle-to-everything (C-V2X) technology, and the limited deployment of DSRC in discrete circumstances."

In connection with the report's release, FCC Commissioner Michael O'Rielly stated: "The reality is that the entire debate has gravitated away from the type of sharing regime envisioned in the testing. Instead, the Commission should move past this and initiate a rulemaking to reallocate at least 45 megahertz of the band, which is completely unused today for automobile safety." FCC Commissioner Jessica Rosenworcel issued a statement to the same effect.

This is an instance in which the FCC should move forward with dispatch looking towards repurposing this band for the use of unlicensed Wi-Fi services. Repurposing the 5.9 GHz band could lead to more Wi-Fi offloading, which, in turn, could free up spectrum for future 5G mobile networks and spur additional next-generation services and innovations.

Second, the L-band. NTIA and the FCC also should move forward as promptly as possible to facilitate action on Ligado Network's application to use the fallow L-band spectrum to deploy its satellite and mobile network. As Free State Foundation Senior Fellow Seth Cooper stated in a June 2018 blog, the L-band spectrum can deliver advanced satellite technology in combination with terrestrial mobile technology, but, for now, it remains unused pending the resolution of interference claims. In May 2018, Ligado filed an amendment to its spectrum license modification applications in which it stated:

Mid-band spectrum like the spectrum licensed to Ligado is vital to U.S. leadership in 5G because of its reliability and suitability for high-quality coverage and capacity deployment. If the Modification Applications are approved, Ligado will be uniquely positioned to leverage the potential of this mid-band spectrum by offering next-generation network capabilities. Ligado would concentrate on targeted deployments that deliver focused, highly secure and ultra-reliable communications over custom private networks to specific geographic locations that serve the industrial Internet of Things and the emerging 5G markets, particularly in critical infrastructure industry sectors such as rail, trucking, utilities, public safety, and oil and gas.

A May 2016 report by economist Coleman Bazelon projected that Ligado’s hybrid network would generate between $250 and $500 billion in social welfare benefits by relieving growing demand pressure for mobile wireless broadband services. Ligado has affirmed its intent to invest $800 million in satellite and terrestrial network infrastructure with the prospect of creating approximately 8,000 jobs.

If Ligado's applications ultimately are granted, the projected social, economic, and national security benefits to the public, and to the nation, appear to be substantial. I understand that there are continuing claims from various quarters asserting that Ligado's proposed network raises still-unresolved interference concerns, despite Ligado's efforts over the last couple of years to address the concerns in a constructive fashion. Perhaps in this instance – as with the 5.9 GHz band and others too – President Trump's Memorandum will provide the federal agencies involved with a renewed commitment to act in a way that facilitates the repurposing of the L-band spectrum. As Seth Cooper and I said in reply comments in July 2018 in response to Ligado's recent application amendment, working with NTIA, "the Commission should do all it can to reach a final decision on the application modifications in a timely manner."

Of course, sometimes a memorandum is just another memo. But President Trump's Spectrum Strategy Memorandum ought to be more than just another memo. I am not suggesting that it purports to dictate the outcome of the two proceedings discussed here or any others. But I hope that, in this instance, the directive is a signal the Trump Administration intends to address America's growing spectrum needs as "efficiently and effectively as possible" and with a sense of dispatch.

Wi-Fi Alliance Releases Report Highlighting Critical Role of Wireless Networks During COVID-19 Pandemic

2020 was a banner year for unlicensed spectrum. For the first time in decades, the FCC made available significant amounts of additional capacity for Wi-Fi. The Wi-Fi Alliance recently released a report that affirms the wisdom of those actions.

Long before the COVID-19 pandemic motivated many Americans to learn, work, seek treatment, and interact socially from the safety of their homes, Wi-Fi had started to outgrow unlicensed allocations in the 2.4 and 5 GHz bands. The exploding number of connected devices and ever-evolving requirements – higher speeds, lower latency – demanded not just more spectrum, but also contiguous wideband (160 MHz) channels able to take full advantage of Wi-Fi 6, the latest iteration of the technical standard.

The Commission responded in April by freeing up 1,200 MHz in the 6 GHz band for unlicensed use. I wrote in a February 2020 Perspectives from FSF Scholars about the potential of Wi-Fi 6 equipment operating in the 6 GHz band – branded commercially as "Wi-Fi 6E" devices – to modernize wireless networking.

In addition, in November the agency reallocated 45 MHz of spectrum in the 5.9 GHz band to unlicensed use. The Free State Foundation filed comments supporting that proposal, and I wrote a supporting piece, "The FCC's 5.9 GHz Proposal Would Advance Both Wi-Fi and Vehicle Safety," shortly before its adoption.

In a December 7 statement announcing the agency's approval of the first Wi-Fi 6E device, Chairman Ajit Pai highlighted the role that Wi-Fi has played during the current public health crisis and proclaimed a new era in wireless connectivity:

Today, we get an exciting glimpse of America's Wi-Fi future.... During the COVID-19 pandemic, we've all seen how Wi-Fi has enabled everything from work-at-home to telehealth to remote learning to streaming and gaming. Wi-Fi 6 will turbocharge each of these and more, and will also complement commercial 5G networks. Bottom line: The American consumer's wireless experience is about to be transformed for the better.

A December 2020 report prepared by Telecom Advisory Services LLC and released by the Wi-Fi Alliance quantifies just how important Wi-Fi networks are during these trying times. A few key takeaways:

• Global Wi-Fi use has increased roughly 82 percent during the pandemic.
• U.S. smartphone use of Wi-Fi increased over 10 percent in March.
• The number of devices connected to Wi-Fi networks has increased by 11 percent.
• The number of simultaneously connected devices has jumped at least 60 percent.

Pending Proposal Would Dedicate 5.9 GHz Spectrum for Unlicensed Wireless Services

Free State Foundation President Randolph May tweeted the following regarding the FCC Chairman Ajit Pai's circulation of draft rules for dedicating 5.9 GHz spectrum for unlicensed services like Wi-Fi:

Announcement by @AjitPai that @FCC will vote to adopt rules for the 5.9 GHz #spectrum band is welcome and imp't. What it means is more WiFi, at higher speeds, for consumers, while also improving auto safety. @EvanS_FCC @BrendanCarrFCC @CTIA @IIABroadband https://t.co/FyVlLFMmA1 pic.twitter.com/GIt6x5rUpc

— Free State Foundation (@FSFthinktank) October 28, 2020

Chairman Pai Offers Incisive Remarks on U.S. Spectrum Policy

For an excellent overview of the FCC's progress putting spectrum into commercial use during Chairman Ajit Pai's tenure, look no further than his remarks to the Information Technology Industry Council (ITI) on January 14. He also addresses the future of American spectrum policy.

Here are some key paragraphs concerning the Commission's initiatives to put mid-band spectrum into licensed commercial use: 

When I came into office in 2017, the cupboard was almost empty. The only mid-band spectrum in the pipeline was the 3.5 GHz band, which was saddled with misguided restrictions that weren’t going to encourage 5G deployment. So not quite “mark it zero,” but close. Despite starting from behind the eight ball, we turned things around, and in a big way. Under my direction, the FCC systematically identified mid-band airwaves that were being underused. This was a very complicated case, you know, a lot of ins, lot of outs, a lot of what have yous. But we figured it out and set plans in place to put these airwaves to work for the American people…

 

Put all these together—the C-band and the 3.5 GHz band, together with a future auction of the 3.45 GHz band—and we are on a path to have a contiguous 530-megahertz swath, from 3.45 to 3.98 GHz, of mid-band spectrum available for 5G. Not bad, considering where we started. That’s 5G FAST. 

Later, Chairman Pai describes the Commission's success in making much more spectrum available for unlicensed use:

 

These two initiatives, on 6 GHz and 5.9 GHz, will open up 1,200 and 45 megahertz of spectrum for unlicensed use, respectively. Now let’s talk about gigahertz—1,000 times as large. Through our 2019 Spectrum Horizons Order, the Commission made a massive 21.2 gigahertz of spectrum above 95 GHz available for unlicensed use across four frequency bands. 

 

Importantly, Chairman Pai squarely addressed the problem of other federal agencies putting up obstacles to the repurposing of more spectrum for commercial use:

 

[A]rguably the biggest thing hampering efforts to use spectrum more efficiently is—our own government. On proceeding after proceeding, we saw that other federal agencies tried to throw up roadblocks. Rather than look out for the public interest, many agencies were looking out for their narrow parochial interest. And since most don't have in-house spectrum expertise, they ended up simply parroting the exaggerated, hysterical, and often outright false claims being made by the industries they regulate. To achieve their aims, they ended up bypassing normal channels and complaining to Congress or the media in an effort to block or delay efforts to free up spectrum for commercial use. 

 

Chairman Pai offers wise words to his successor at the FCC in holding the line on spectrum reallocation. identifies the need for strong NTIA leadership going forward, and addresses the need to discuss reforms to the government's spectrum management framework. 

 

Be sure to check out Chairman Pai's remarks to ITI in their entirety.  

Chairman Pai's Announcement Regarding the 5.9 GHz Band

The following statement may be attributed to Free State Foundation Visiting Fellow Greg Vogt:

Chairman Pai's announcement today that he would ask the Commission to launch a reorganization of the 5.9 GHz band to accommodate unlicensed and automotive safety use is good news. Because this 75 MHz of mid-band spectrum has remained almost fallow for twenty years, a modernized and more flexible use band which provides more spectrum for Wi-Fi and other unlicensed applications will better serve the future of American's communications needs.

Report Projects Astonishing Rise in Wi-Fi's Economic Value

On February 3, the Wi-Fi Alliance® released a study titled "Global Economic Value of Wi-Fi® 2021-2025." The report estimates that the current worldwide value of Wi-Fi is $3.3 trillion, and that it will reach $4.9 trillion by 2025. 

As the report observes: "The United States remains one of the countries with the widest Wi-Fi adoption and use." It credits the high numbers of paid Wi-Fi access points and public Wi-Fi sites. According to the report, "[t]he total economic value of Wi-Fi in 2021 is $995 billion. With the new allocation of 1200 MHz in the 6 GHz band, as well as market penetration of Wi-Fi 6, the value of Wi-Fi will grow to $1.58 trillion by 2025."

Free State Foundation scholars have supported FCC initiatives in its 6 GHz and 5.9 GHz to put spectrum into unlicensed use, including for technologies such as unlicensed Wi-Fi. As Free State Foundation Senior Fellow Andrew Long explained in his Perspectives from FSF Scholars paper, "Wi-Fi 6G Can Modernize Unlicensed Wireless," the new Wi-Fi 6E standard will usher in a new era of unlicensed wireless growth and innovation. 

 

It will be exciting to see these spectrum allocations to unlicensed use and the widespread adoption of Wi-Fi 6E devices pay dividends in terms of faster, more capacious, and extra-reliable Wi-Fi connections as well as new uses. Yet at the same time, the Wi-Fi Alliance report should lead us to recognize the need to build up the U.S. stock of mid-band spectrum for licensed commercial use. As the report points out, the FCC has dedicated significant mid-band spectrum resources to unlicensed Wi-Fi use. Analysys Mason's "Comparison of Total Mobile Spectrum in Different Markets" report from June 2020 identified the U.S. as the nation with by far the highest amount of unlicensed mid-band spectrum assigned to unlicensed use – at 1,860 MHz. Free State Foundation scholars will have more to say soon on repurposing additional mid-band spectrum for licensed commercial use. 

Article Forecasts Unlicensed Wi-Fi 6's Partnership with 5G Wireless

Amidst the fast rollout of 5G networks, it is all too easy to overlook the growth of Wi-Fi 6 and its role in supporting next-generation broadband network services. On December 1, Deloitte published an article titled "Wi-Fi 6: Unsung, underexposed—and indispensable to the future of enterprise connectivity." The Deloitte article offers the important insight that "5G may get the lion's share of the publicity, but Wi-Fi 6 devices are quietly outselling 5G devices by a large margin and will likely continue to do so for the next few years at least." Additionally: "Deloitte Global predicts that more Wi-Fi 6 devices will ship in 2022 than 5G devices, to the tune of at least 2.5 billion Wi-Fi 6 devices versus roughly 1.5 billion 5G devices." The article goes on to explain that "Wi-Fi 6 and 5G are designed to work together smoothly, and the wireless industry appears headed toward a future in which devices can roam securely and seamlessly between all types of wireless networks." As the article shows, Wi-Fi 6 will play a crucial role in the future of wireless services. 

Free State Foundation Senior Fellow Andrew Long provided an overview of the potential functional and economic benefits of next-gen Wi-Fi in his February 2020 Perspectives from FSF Scholars, "Wi-Fi 6E Can Modernize Unlicensed Wireless." The FCC's 2020 orders to repurpose spectrum in the 5.9 GHz and 6 GHz bands for unlicensed flexible use -- including Wi-Fi -- will help realize those benefits.

New Agreement Between FCC and NTIA Could Improve Spectrum Coordination

On August 2, the FCC and NTIA announced the signing of a new memorandum of understanding (MOU) on spectrum coordination. Free State Foundation President Randolph May and I addressed the topic of an updated MOU in a February 2022 Perspectives from FSF Scholars titled "Congress Should Require Better Agency Coordination on Spectrum Policy" and in a contemporaneous short blog titled "Congress Should Set Parameters for Improved Interagency Spectrum Coordination." Also, my July 26 blog post acknowledged the Government Accountability Office's (GAO) recommendation that the Commission and NTIA update their agreement. 

The signing of the MOU by Chairwoman Rosenworcel and Assistant Secretary Davidson is welcome news. It is to be hoped that the new MOU's framework for regular meetings and information sharing between the FCC and NTIA on spectrum management will foster conditions that are more conducive to interagency cooperation. In the last few years, we have witnessed conflicts between the Commission and executive branch agencies on spectrum policy in regarding 5.9 GHz band, the 24 GHz band, the C-band, and the L-band. The updated MOU may help reduce those types of conflicts in the future. In particular, the new MOU's formal requirements that the FCC and NTIA give each other 20-day advance notice regarding interference concerns and final actions on spectrum matters may help stop dubious process-based attacks on Commission spectrum decisions like the ones made against the 2020 L-band Order.

But we won't know how useful the new MOU is until we see it put into operation. As I explained in a July 13 blog post, new agreements and formal procedures will not mean anything unless the agencies act in good faith to resolve their disputes – through the interagency working group and through the new MOU framework – rather than employing hyperbolic, if not false, attacks on contested spectrum proposals using outside channels. 

Reps. Doyle and Latta Lay Out Plan to Reform Spectrum Management

Earlier today, on its "Congress Blog," The Hill published an op-ed penned jointly by Representatives Michael F. Doyle (D – PA) and Robert E. Latta (R – OH). Determined to avoid a repeat of the recent kerfuffle between the FCC and the FAA over 5G mobile operations in the C-Band, the two lawmakers set forth a four-element plan to overhaul interagency spectrum coordination processes.

As you undoubtedly recall, earlier this year the launch by Verizon and AT&T of 5G using C-Band spectrum licenses for which they contributed billions to the U.S. Treasury was impacted when, at the eleventh-hour, the FAA raised aviation-related concerns.

This occurred even though, prior to auctioning that spectrum, the FCC undertook a lengthy, deliberate, and engineering-informed process that considered, and addressed, potential interference.

Over the last few years, other disagreements regarding FCC efforts to repurpose high-value, underutilized spectrum similarly have played out in unprecedentedly high-profile fashion. They include the L-Band (vis-à-vis the Department of Defense), the 5.9 GHz band (the Department of Transportation), and the 24 GHz band (NASA and NOAA).

In "Aviation conflict highlights the need for spectrum management reform," Representative Doyle, Chairman of the House Energy and Commerce Committee's Subcommittee on Communications and Technology, and Representative Latta, its Ranking Member, expressed their well-founded concern that "declining faith in how these decisions are made is beginning to show signs of jeopardizing the consumer and economic benefits we've enjoyed for generations."

In response, the two laid out four principles that will guide their bipartisan efforts to "pursu[e] public oversight and restor[e] trust in the spectrum management process."

Those principles are as follows:

1. Reassert that it is NTIA that has the responsibility "to balance the needs and concerns of federal spectrum users, and to communicate those interests to its governmental counterparts and the public."
2. Promote "clear rules and expectations for federal and other spectrum users."
3. Ensure "that the government process for managing these critical spectrum resources [relies] on science and engineering …, not the institutional interests of a single federal agency."
4. Prioritize "the finality of [spectrum management] decisions."

Randolph J. May, the Free State Foundation's President, and Seth L. Cooper, its Director of Policy Studies and a Senior Fellow, made a number of similar points in "Congress Should Require Better Agency Coordination on Spectrum Policy," a February 15, 2022, Perspectives from FSF Scholars.

Specifically, Mr. May and Mr. Cooper (1) urged NTIA and the FCC to update their spectrum coordination Memorandum of Understanding to "expressly acknowledge NTIA's role in representing all executive branch agencies," (2) argued that "Congress should pass legislation to improve coordination among federal agencies," (3) noted with concern how the status quo "risks causing unnecessary delay and regulatory uncertainty," and (4) concluded that an improved process "could provide greater assurance to the public."

Study: Additional Spectrum for Wi-Fi Promises Economic Benefits

A recent study commissioned by WifiForward concludes that additional unlicensed spectrum could contribute nearly $200 billion to the U.S. economy.

In order to mitigate the COVID-19 public health crisis, government officials have taken significant steps to "flatten the curve." As a result, many business establishments deemed to be "non-essential" are closed. So, too, are schools. The ability to work and learn remotely mitigates the economic and social impact of these measures. In-home Wi-Fi networks operating in unlicensed spectrum make this possible by allowing consumers to connect multiple end-user devices – laptops, smartphones, tablets, etc. – to broadband facilities.

As a consequence, the use of both broadband and Wi-Fi has increased dramatically. NCTA – The Internet & Television Association reports that, since March 1, its cable operator members have witnessed a 20 percent increase in downstream traffic and a 34 percent increase in upstream traffic. Meanwhile, data released by Plume reveals that the number of Americans online at home during the day has increased 105 percent since January 29, from 22.6 to 46.2 million. The Free State Foundation can attest to this new reality, having conducted its first meeting by videoconference just a few days ago.

In a February 7 FSF Perspectives, I noted that, according to the Wi-Fi Alliance, Wi-Fi's global economic value in 2018 was nearly $2 trillion, of which 25 percent – $499 billion – was captured in the United States. In 2023, those numbers are expected to increase to $3.47 trillion and $993 billion, respectively.

A study released by WifiForward on April 13 predicts that additional Wi-Fi capacity could generate substantial economic gains. Specifically, it concludes that FCC proposals to allocate spectrum to unlicensed use in the 5.9 GHz and 6 GHz bands could contribute more than $183 billion to the U.S. economy over the next five years. This includes a $106 billion increase in Gross Domestic Product (GDP), $69 billion in producer surplus, and $8 billion in consumer surplus.

Thankfully, one day soon people will be able to return to their offices and schools. However, the long-term effects of the Coronavirus pandemic on how, and from where, people work and learn remain to be seen. One thing, though, is certain: Wi-Fi will continue to play an integral role.

The executive summary of the study by Dr. Raul Katz is available here.

Cisco's Annual Internet Report: Future Trends in Regional Wi-Fi Speeds

As my Free State Foundation colleague Seth Cooper highlighted recently, Cisco has released the 2020 edition of its always-informative Annual Internet Report. I commend Cisco for making this invaluable industry resource available and anticipate seeing, as well as making, references to its findings during the year ahead.

The report, which covers 2018 through 2023, provides valuable insights into the current state of, and future trends regarding, fixed wireline, mobile, and Wi-Fi connectivity worldwide.

In particular, one specific set of data points caught my attention. Cisco forecasts that, at some point in 2022, average Wi-Fi network connection speeds in the Asian Pacific region will overtake those in the North American region: 98.5 Mbps versus 98.4 Mbps. And by 2023, Asian Pacific speeds will average 116.1 Mbps, compared to only 109.5 Mbps in North America.

Pending FCC proposals could free additional spectrum for unlicensed devices in two frequency bands, 5.9 GHz and 6 GHz. Both would enable the wider (e.g., 80 and, in particular, 160 MHz) data channels essential to unleashing the full potential of the next generation of Wi-Fi technology, Wi-Fi 6 (IEEE 802.11ax).

Time will tell whether one or both of these proceedings in fact produce additional spectrum for unlicensed use and, if so, whether North America can maintain its global leadership position in Wi-Fi speeds as a result.

MEDIA ADVISORY: FCC's Actions Today Display Commendable Bipartisan Unity

The following statement may be attributed to Free State Foundation President Randolph May regarding today's actions by the FCC:

In a series of votes today, the FCC took some important steps to advance sound communications policy. Probably the most consequential action was the adoption of an order that immediately makes available additional spectrum for next-generation WiFi in the 5.9 GHZ spectrum band, while also reserving spectrum to be used to improve auto safety. While it is not to be expected that the commissioners always will agree across party lines on all consequential matters, nor should they, today's actions show that on many matters, especially those that are more technically and engineering-oriented such as spectrum allocations, they can and do agree on a bipartisan basis. In today's environment, and given the importance of more ubiquitous broadband connectivity and 5G deployment to the nation's social and economic well-being, this is worthy of note, and commendation.

C Proposes to Make 5.9 GHz Spectrum Available for Unlicensed Uses

Today, the FCC adopted a proposed rulemaking that would make valuable unused spectrum available for unlicensed Wi-Fi uses. According to the Commission's news release:

[T]he Commission proposes to designate the lower 45 megahertz of the band for unlicensed uses like Wi-Fi. This 45 megahertz sub-band can be combined with existing unlicensed spectrum to provide cutting-edge high-throughput broadband applications on channels up to 160 megahertz wide. 

Congratulations to the Commission and to Chairman Ajit Pai. The Commission's vote to issue its proposed rulemaking is an important step in making more spectrum resources available for wireless services.  

Report on Fixed Wireless Access Competition Shows Need for More Mid-Band Spectrum

Today, Econ One released a report titled "Competitive Effects of Fixed Wireless Access on Wireline Broadband Technologies." There is an ongoing debate over the potential impact of fixed wireless access (services) on broadband competition. This interesting report, authored by Hal Singer and Augustus Urschel, provides a significant contribution to the debate.

The Econ One report estimates the competitive effects of FWA entry into broadband markets. The estimates are based on surveys of consumer responses to hypothetical scenarios in which FWA services are made available at different price levels and in local markets with differing choices among incumbent providers of cable modem and/or fiber broadband services. 

 

According to Econ One's report: "In all scenarios—including at current prices or alternative discounted prices, and in markets with only cable or those with a mix of cable and fiber offerings—the introduction of FWA packages yields price reductions and significant consumer welfare gains." That is, the report found that FWA market entry would prompt many subscribers to switch from incumbent services to competitively priced FWA services and also lead to price reductions for subscribers to cable broadband services. For the details, check out Econ One's report.

Notably, Econ One's report "assumes sufficient capacity to support all potential subscribers with high-speed FWA service." That assumption is key because mid-band spectrum is a necessary input for supporting FWA services for large numbers of subscribers. But as Free State Foundation scholars have pointed out in April 2023 public comments to the NTIA for its National Spectrum Strategy proceeding, in Perspectives from FSF Scholars papers, and in blog posts, there is a shortfall of mid-band spectrum available for commercial licensing on an exclusive basis. The Econ One report is on solid ground in concluding that "[t]he best and fastest way to increase home broadband competition, which will bring significant consumer savings, is getting more full-power, licensed, mid-band spectrum into the hands of FWA providers."

FSF scholars have supported prior FCC allocations of spectrum for use on an unlicensed basis, including the Commission's 5.9 GHz Order. Congress and federal agencies also ought to be open to pursuing new opportunities to dedicated other spectrum resources to unlicensed uses. But it is now imperative that Congress and federal agencies prioritize the repurposing of mid-band spectrum for exclusive licensed use. Congress needs to renew the FCC's authority to conduct competitive bidding auctions for spectrum licenses and get additional mid-band spectrum into use to support FWA.