On the heels of the 3.5 GHz Citizens Broadband Radio Service (“CBRS”) auction and ahead of the 3.7 GHz C-Band auction, the Federal Communications Commission (“FCC” or “Commission”) has released a Report and
Order (“Order”) and Further Notice of Proposed Rulemaking (“FNPRM”)[1] in which it adopts procedures and seeks comment on sharing the use of the 3.45-3.55 GHz band with federal incumbents for 5G use. Given high interest in the CBRS band, users of spectrum in the 3.5 GHz band and auction winners should pay close attention to this proceeding. Among other things, the FNPRM sets out competitive bidding rules for a potential 3.45 GHz band auction that could take place in December 2021.

In the FNPRM, the Commission proposes to make the 3.45-3.55 GHz band available to fixed and mobile services, excluding aeronautical mobile services, on a co-primary basis with federal incumbents. The Commission plans to license the band in 20 megahertz blocks, but seeks comment on whether a better alternative would be to license the band by 10 megahertz blocks similar to allocation of CBRS Priority Access Licenses (“PALs”). The Commission also proposes to license the 3.45-3.55 GHz band by Partial Economic Areas (“PEAs”). The licenses will be unpaired and have a fifteen (15) year term with the technical and compliance rules reflecting those of the 3.7 GHz Service Order.

The proposed renewal and performance requirements are also similar to those in the 3.7 GHz Service
Order. Specifically, the FCC proposes two performance benchmarks, the first at eight years and the second within twelve years of the license issue date. Licensees using the frequencies for mobile or point-to-multipoint services would be required to show that there is reliable signal coverage and an ability to offer service to at least 45% of the population in each license area by the eighth year of the license term and provide 80% coverage by year
twelve. The FCC proposes a separate benchmark for licensees providing fixed point-to-point services based on population areas of 268,000 or less.

The Commission also seeks comment on whether to offer small business and Rural Service Provider bidding credits. If the FCC decides to offer the small business credit, it seeks comment on how “small” and “very small” businesses should be defined. The FNPRM proposes a fifteen percent (15%) discount for entities that qualify for the Rural Service Provider bidding credit.

Currently, the 3.45-3.55 GHz band is used by the DoD for high-powered radar systems, but the DoD plans to adjust their operations to allow for commercial operation within the band. However, incumbent federal operations and non-federal fixed and mobile operations will need to coordinate shared use of the band. The Commission seeks comment on an appropriate regime to coordinate non-federal and federal use in the band. Importantly, the Commission requests comment on ways it can assess and limit harmful interference from federal operations in adjacent bands, specifically in the CBRS band.

Comments on proposals contained in the FNPRM will be due 30 days after publication in the Federal Register and reply comments will be due 45 following publication, which has not yet occurred.
If you have any questions regarding this FNPRM or are interesting in filing comments, please contact Dee Herman at [email protected] or Hilary Rosenthal at [email protected].