The FCC voted 3-2 on Wednesday to expand access to the 4.9 GHz band by giving states the chance to lease the spectrum to commercial entities, electric utilities and others – and both sides of the aisle cited the interests of public safety as a motivating factor.
That’s notable because many public safety agencies wanted the FCC to scratch the item from its agenda, saying the FCC shouldn’t be putting state governments in a position to dictate spectrum policy and override investments made by the public safety agencies at county and local levels.
In the end, the FCC set out to tackle a familiar problem. The 50 megahertz of spectrum in the 4.9 GHz band was designated for public safety use nearly 20 years ago, but only about 2% of eligible public safety entities pursued the means of using it. The under-investment in the band was blamed, in part, on the high cost of equipment.
FCC Chairman Ajit Pai said the 4.9 GHz band became a story of spectrum “haves” – primarily in large cities such as New York City, Los Angeles, and Seattle – and “have nots,” particularly in the smaller and rural jurisdictions that can’t afford to deploy in the band.
“’Under our new approach, we will allow a single state government entity to lease covered spectrum in this band while maintaining and protecting incumbent public safety licensees’ operations,” Pai said in prepared remarks. “We recognize the simple truth that what works for New York City may not make sense in rural West Virginia; therefore, we give lessors the right to choose what is best for citizens of their state: They can enter into leases with public safety and non-public safety entities alike.”
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If an eligible state wants to lease its spectrum to FirstNet for use in its national public safety network, it can do so, he said. If a state wants to lease spectrum in less densely populated areas to a wireless internet service provider (WISP), an electric utility, or other critical infrastructure industry player and retain the spectrum in more densely populated areas, it can do that as well, he added.
He noted that some of the equipment that WISPs use to provide fixed wireless service may be easily tunable to the 4.9 GHz band frequencies, allowing them to quickly and affordably deploy in rural and underserved areas. He also added that this new approach is supported by groups as diverse as New America’s Open Technology Institute, the Taxpayer Protection Alliance, the Washington Policy Center and the Pelican Center for Technology and Innovation.
Commissioner Michael O’Rielly, who’s term at the commission is ending this year, said the 4.9 GHz band is vastly under-utilized, and not by just a little bit. While he supports public safety, no commission should let spectrum essentially lay fallow based on the notion that some day, “the allocation just might possibly be used … for its intended purposes.”
Specifically, the FCC’s action permits one statewide 4.9 GHz band licensee per state to lease some or all of its spectrum rights to third parties – including commercial and public safety users – in those states that the FCC has not identified as a diverter of 911 fees. The Report and Order also does not limit or modify the rights of any incumbent public safety licensees, so they will be able to continue to provide existing services, according to the FCC.
Democrats dissent
Commissioner Jessica Rosenworcel said the nearby 2.5 GHz band offers a cautionary tale. The FCC allocated the 2.5 GHz band nearly six decades ago for educational use, but many licensees had difficulty making full use of their spectrum. Over time, the FCC permitted educational licensees to lease excess capacity for commercial use.
The spectrum ended up being used for commercial uses rather than for education. “There’s no reason to think states won’t do the same here and override public safety investments made at county and local levels in the process,” she said. “There’s no reason to think that the same policies that failed to fix the 2.5 GHz band will magically fix the 4.9 GHz band.”
Fellow Democratic Commissioner Geoffrey Starks said the decision pursues an approach that “comes out of the blue.” Since the proceeding first began, the FCC had considered many options to increase spectrum usage in the 4.9 GHz band while protecting public safety operations.
“By pushing management of the 4.9 GHz band to the states, the majority risks creating dozens of inconsistent approaches to this valuable spectrum resource,” Starks said. “States have vastly different interests and levels of spectrum expertise and will undoubtedly take different approaches to issues like interoperability, security and interference protection. As a result, public safety usage of the 4.9 GHz band may actually become less efficient, secure and reliable – even as commercial interest remains meager at best.”
The Republican majority, however, framed it as a way to increase usage of the band while helping out the public safety community during a time when they need it the most.
“The men and women who protect us, who put out fires, race to us in ambulances, and answer our emergency calls, have taken the brunt of this pandemic more than most. They don’t get to socially distance. Their help is needed more right now, yet they are given less,” said Commissioner Brendan Carr. “If there ever were a time for our agency to give public safety a hand, to get rid of some old rules, to open a path for funding, now would be that time.”
Pai concluded that the approach may not be perfect, but it’s better than any of the alternatives that have been proposed. “And one thing we know for sure is that regulatory inertia is not the best option,” he said. “The 4.9 GHz band is well-suited to meet the nation’s growing demand for mid-band spectrum, and this Commission will not stand idly by and let this spectrum continue to largely lie fallow.”