The FCC’s 4.9 GHz Sixth Report and Order and Seventh Further Notice of Proposed Rulemaking,  released on October 5, 2020 in WP Docket No. 07-100 represents a significant change in the way that public safety spectrum is allocated.  By assigning responsibility for spectrum use and management to States under a lease or spectrum manager format, the FCC has taken a step toward utilizing the spectrum management tools traditionally used for private spectrum in the public safety space.  Although the decision has some similarities to the 700 MHz and 800 MHz NPSPAC plan allocation formats, the ability to intermix a variety of public safety, non-public safety, wideband, and narrowband operations controlled by a band manager or through leases issued by a state will no doubt be unfamiliar to many public safety entities.  Over the coming months, GWTCA will endeavor to provide educational opportunities for states, public safety entities and potential lessors on the benefits and pitfalls of this new licensing regime.

Subsequently, after several Petitions for Reconsideration, on October 1, 2021 the FCC issued an Order on Reconsideration and Eighth Further Notice of Proposed Rulemaking.  This document “takes back” the Sixth Order, and asks questions about different methodologies for licensing in the band.

Here are the slides from GWTCA’s 4.9 GHz webinar held on October 20, 2020. 

The 4.9 GHz Band (4940-4990 MHz)

This band has been used over the past twenty years by public safety agencies (including nongovernmental organizations in certain circumstances) for a variety of activities for mobile, fixed point-to-point or fixed point-to-multipoint operations.  Here are GWTCA’s Comments in the proceeding, with some examples of usage.  Los Angeles County separately discussed its usage of the 4.9 GHz band in its Comments.  With 50 MHz available in the band, operations of a variety of bandwidths is possible.

However, the FCC believes that the band is underutilized.  For this reason, the Commission opened a proceeding to look at a variety of methodologies to expand usage of the band, including making it available for unlicensed devices, and issued a Sixth Further Notice of Proposed Rulemaking in 2018.

The 4.9 GHz Sixth Report & Order Changes:

The 4.9 GHz Sixth Report & Order makes the following changes:

• • Permit one statewide 4.9 GHz band licensee per state (the State Lessor) to lease some or all of its spectrum rights to third parties, including commercial, critical infrastructure, and other users, thus making up to 50 megahertz of mid-band spectrum available for more intensive use;
  • Treat single statewide licensees as the default State Lessor and require states with multiple statewide licensees to select one of those entities as the State Lessor;
  • Eliminate the requirement that leased spectrum must be used to support public safety and permit the State Lessor to lease spectrum rights for public safety or non-public safety purposes; and
  • Require lessees to adhere to the same informal coordination required of existing licensees.

The FCC’s Seventh Further Notice Of Proposed Rulemaking:

The document also includes a Seventh Further Notice of Proposed Rulemaking.  In this portion of the document, the FCC is seeking comments on some implementation issues related to the specifics of the amendments above.  These are the issues upon which Comment is sought:

• Propose a new set of licensing rules, including making permanent the freeze on new applications implemented on September 8, 2020 and grandfathering all current public safety licensees;
• Propose to allow states without a statewide license to obtain such a license;
• Seek comment on the creation of a voluntary State Band Manager to coordinate and authorize new public safety operations as well as the State Band Manager’s authority and responsibilities; and
• Seek comment on additional ways to implement and facilitate robust use of the leasing framework, including the use of dynamic spectrum sharing and encouraging collaboration across jurisdictions.

What The Sixth Order And NPRM Did, And What It Didn’t Do (Q&A)

Because of the significant confusion in the public safety industry over the Sixth Order, plus the lack of clarity in the document on some issues, we present the following Q&A.  Please note that anything that is only a proposal in the NPRM portion of the document is specified as a proposal only.  Other items, not listed here as a proposal, are from the Order portion of the document.  While these items are superseded by the Commission’s October 1, 2021 document, its important to consider the background of what the Commission had in mind when this Order was adopted, as it can inform further positions in the proceeding.

We encourage you to send us questions, and we will be providing as much public education as we can.

1. What kind of “leasing” can the State Lessor enter into? Each State Lessor can enter into leases with public safety or non-public safety entities.
2. Is a State required to lease spectrum?  Each State will have the opportunity to lease voluntarily some or all of its 4.9 GHz spectrum rights to third parties for fixed or mobile use.  Order at para. 20.
3. Could a State lease spectrum to a commercial entity, and that commercial entity could then provide service to public safety entities?  Yes.  Order at para. 21.
4. Could a State lease spectrum in one part of the state for one kind of service, and lease spectrum in another part of the state for a different service?  Yes.  Order at para. 21.  However, unlike the FCC’s Secondary Markets process in other bands, the State Lessor many engage in partial assignments, partitioning or disaggregation of spectrum.  Order at footnote 65.
5. If a State Lessor decides that the 4.9 GHz spectrum should be shared between public safety and non-public safety entities, will public safety’s operations become secondary, or shared?  “We empower each State Lessor to decide whether to include public safety priority provisions in any lease arrangement based on its judgment regarding the best use of the 4.9 GHz band.” Order at para. 44.
6. I’m an incumbent 4.9 GHz Licensee.  Will I lose my license?  In paragraph 46, which begins the Seventh Further Notice of Proposed Rulemaking, the Commission states that its proposes to grandfather 4.9 GHz licenses “… that were in effect at the time of the Freeze Public Notice and those granted pursuant to a waiver of, or modification of, the freeze.
7. Great!  The FCC proposes to grandfather my existing 4.9 GHz license, but will I be stuck with my operation today (like T-Band) or will I be able to grow my system?  In paragraph 48, the FCC seeks comments on the appropriate scope of grandfathering.  The FCC’s proposal is that existing licensees would have the continuing ability to add base stations, mobile units and temporary fixed sites within their jurisdictions, just as with the existing rules.  The FCC proposes that existing licensees seeking to expand their geographic reach could do so under the leasing protocol.  Order at para. 52.
8. What are the leasing options for the State Lessor?  Similar to the FCC’s Secondary Markets Order, a State could enter into a de facto transfer spectrum leasing arrangement, where the licensee retains de jure control of the license while de facto control of the leased spectrum is transferred to the spectrum lessee, as well as spectrum manager leasing arrangements (as was initially done for the 700 MHz Guard Band) where the lessee is permitted to use the spectrum, but the licensee (the State) retains both de jure and de facto control.  Order at para. 25.  In paragraph 56, the Commission asks whether States have an entity already capable of undertaking this role, or whether further expertise will be needed.
9. I have a waiver to operate at 4.9 GHz for aeronautical use.  What happens to me?  If the State Lessor is the one granted a waiver, they can continue such use, but that right is not transferable to a lessee.  Order at para. 27.  Paragraph 46 proposes to grandfather existing non-State licensees, which presumably would include those with waivers.  In paragraph 68, the FCC asks if aeronautical use should be permitted without a waiver.
10. What type of operations will be permitted at 4.9 GHz going forward, and what would be precluded?  Geographic area lessees, public safety, B/ILT or commercial, are permitted to construct base stations and engage in mobile operations, including the use of temporary fixed sites, within their jurisdictions, as is the case under existing rules.  For certain cases involving FAA issues, etc., an individual site license may be required under Section 90.1207, consistent with existing rules.  Order at para. 29.
11. What are the coordination requirements for 4.9 GHz.  As with today’s rules, the informal coordination requirements of Section 90.1209(b) will apply to lessees in the same way as licensees.  Order at para. 29.  There is no prohibition in the Order if the State wanted to impose additional coordination requirements.  In fact, the Commission expects that this leasing regime will protect against harmful interference by having a single state entity coordinate usage.  Order at para. 13.  However, at a minimum, the FCC expects that the State Band Manager (if a State adopts such an approach) would, at a minimum, coordinate operations among grandfathered public safety licensees and 4.9 GHz lessees.  Order at 54.
12. How will I be protected from interference?  In paragraph 62, the FCC asks where additional interference protection and/or resolution rules need to be adopted, or whether the FCC can leave this to each State to manage.  It should also be noted that in paragraph 66, the Commission asks whether Dynamic Spectrum Sharing (as with TV White Spaces or CBRS) should be permitted, and now it should be different from other bands.
13. Interoperability is paramount to us.  How do we ensure that interoperability is maintained (or created) across State boundaries?  The Commission requests comment on this issue in paragraph 65.
14. My State does not have an active Regional Planning Committee, and I doubt that the State would be interested in being a lessor.  What happens to us?  The FCC asks how to handle this situation in paragraph 64.
15. Did the Public Safety Industry have any notice of the FCC’s intention to permit leasing in this Band (as required by the Administrative Procedures Act)?  Paragraphs 74-79 of the Commission’s Sixth Further Notice of Proposed Rulemaking discusses an option to permit public safety licensees in the band to lease their licensed spectrum to Critical Infrastructure Industry or commercial interests.  However, it does not mention the possibility of only issuing a single license to a State, and then allowing the State to be the only lessor.

The Commission’s Sixth Order represents a dramatic difference from the current 4.9 GHz licensing process (albeit not as dramatic as the FCC’s recent decision to permit unlicensed devices in the 6 GHz band).  The FCC’s Decision could enable a variety of non-public safety usage in the band, depending on the interests of each state.