United States:

What’s New In 5G – April 2021

To print this article, all you need is to be registered or login on Mondaq.com.

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.

POPULAR ARTICLES ON: Media, Telecoms, IT, Entertainment from United States

Is It Prohibited By The FDA Or Is It Protected Speech?

Frankfurt Kurnit Klein & Selz

As part of its continued policing of COVID-19-related health claims, the FDA has sent a warning letter to Dr. Joseph Mercola and Mercola.com, LLC notifying them they are in violation of federal law.

TCPA Tracker – February 2021

Kelley Drye & Warren LLP

On December 30, 2020 the FCC released a Report and Order issuing guidance on TCPA exemption requirements.

TCPA Tracker – March 2021

Kelley Drye & Warren LLP

On March 9, 2021 Inovalon, Inc. submitted a letter urging the FCC to answer Inovalon’s Petition for Declaratory Ruling and affirm that “faxes with no direct commercial purpose, and offering…