FCC Spectrum Vote Maintains Commitment to Sharing, but Paves Way for Spectrum Warehousing

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Today, the Federal Communications Commission voted to approve a Third Report and Order, Memorandum Opinion and Order, and Third Further Notice of Proposed Rulemaking as part of its efforts to make additional millimeter wave (“mmW”) spectrum available for mobile broadband, and other uses, and enable deployment of 5G wireless networks.

The Third Report and Order is a positive step in that it mandates operability across the 24 GHz band, and affirms previous Commission action to allow for innovative and efficient spectrum sharing in the Lower 37 GHz band. Unfortunately, the Commission also eliminated its pre-auction spectrum aggregation limits for  the 28 GHz, 37 GHz, and 39 GHz bands.

The following can be attributed to Phillip Berenbroick, Senior Policy Counsel at Public Knowledge:

“As with much of this Commission’s spectrum policy, today’s vote on several items in the ongoing Spectrum Frontiers proceeding is a case of two steps forward, one step back. The Third Report and Order demonstrates that in some instances, the Commission has learned from past mistakes, while in others, it is determined to repeat them.”

“The Commission’s action to require operability throughout the 24 GHz band is a pro-competitive step that will help create economies of scale, lowering the cost of devices operating in the 24 GHz band, and ensuring that carriers and consumers aren’t forced to relive the problems that plagued the Lower 700 MHz band.

“Additionally, the Commission’s decision to ratify its 2016 decision to make the 600 megahertz between 37-37.6 GHz available for non-exclusive, shared use, will allow small carriers and other entities to utilize the Lower 37 GHz band for a variety of use cases. Ensuring opportunities for sharing and lowering barriers for a variety of users to access spectrum is critical to promoting innovative and efficient use of scarce public resources, deployment of competitive 5G mobile broadband networks, and wireless deployments in rural and unserved areas.

“Lastly, the Commission’s decision to eliminate its pre-auction spectrum aggregation limits in the 24 GHz, 37 GHz, and 39 GHz bands demonstrates a failure to learn from previous mistakes. As the Commission and the Department of Justice recognized in the consideration and adoption of the FCC’s 2014 Mobile Spectrum Holdings Order, excessive concentration of critical spectrum resources by already-dominant carriers harms competition and leads to fewer choices and higher prices for consumers. In 2016, the FCC recognized the largest mobile carriers had incentives to warehouse mmW spectrum to prevent or delay competitive deployments by rivals, and established pre-auction limits for several mmW bands.

“Today’s action walks back those pro-competitive rules. As a result, already-dominant carriers will be empowered to starve their competitive rivals, including carriers that primarily serve rural and other underserved communities, of the spectrum resources needed to bring next-generation mobile broadband to communities that remain on the wrong side of the digital divide. This action, in combination with the Commission’s previous approval of mmW acquisitions by the largest mobile carriers, is likely to harm wireless competition and make it more difficult for regional and rural wireless carriers to access the spectrum they need to deploy next-generation networks.”

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