FCC Seeks Comment on Assigning Available Spectrum to the Public

Key Points

• The FCC is seeking public comment on methods to enable access to currently unassigned spectrum in their auction inventory that can be used for wireless radio service.
• The Commission took this step because Congress has not renewed its auction authority, which expired in March 2023.
• The FCC has responsibility to make spectrum resources available for use in the public interest. The FCC typically uses spectrum auctions to assign licenses. Prior to having auction authority, the Commission used comparative hearings or lotteries to assign licenses.

Background

The Federal Communications Commission (FCC or the Commission) has historically used “exclusive, geographic-area licensing” to provide nationwide wireless broadband coverage, and it typically uses spectrum auctions to assign the licenses. Prior to auction authority, the Commission used comparative hearings to assign licenses. The unwieldy comparative hearing proceedings were later replaced by Congress with a random selection process. The lotteries, however, were plagued by speculators and Congress terminated that authority. Congress then granted auction authority to the Commission in 1993, and the FCC held its first spectrum auction in July 1994.

Lapse in Authority

Congress allowed the FCC’s auction authority to lapse on March 9, 2023. Since then, discussions in both chambers proposing extension of the authority have stalled. Congress passed a limited bill in December 2023 granting temporary authority to the FCC to issue licenses granted through a previous spectrum auction for the 2.5 gigahertz (GHz) band, but no comprehensive framework has advanced through either chamber.

The lapse in the Commission’s spectrum auction authority has limited the ways the FCC can make vacant spectrum available for use. The Commission presently holds an inventory of spectrum that was previously made available through auctions, but was either not acquired or returned to the FCC (the Inventory Spectrum). This spectrum includes exclusive-use geographic area-based licenses spanning multiple wireless services.

In order to try to get vacant spectrum in the hands of entities that can use it, the Commission issued a Public Notice (the Notice) on March 7, 2024—near the one-year anniversary of its auction authority lapsing. The Notice seeks comment on how the FCC can meet its obligation to provide access to its Inventory Spectrum. The goal is to build a record for the Wireless Telecommunications Bureau (the Bureau) that it can use to work with the Office of Economics and Analytics and the Office of Engineering and Technology to create non-auction options to assign Inventory Spectrum.

Potential Approaches

In the Notice, the Bureau discusses several options for assigning Inventory Spectrum to the public. Many of the approaches are derived from successful initiatives previously used by the Commission:

• Dynamic Spectrum Sharing: The Bureau outlines the possibility of using dynamic spectrum sharing frameworks to open up Inventory Spectrum for flexible wireless use across multiple bands. This approach has been successfully leveraged for licensed use in many bands, including the Citizens Broadband Radio Service in the 3.55–3.7 GHz band and unlicensed use in portions of the 5.925–7.125 GHz band. The Commission poses an example of how this would work for Inventory Spectrum, suggesting that a dynamic frequency coordinator can facilitate access to the Inventory Spectrum for multiple users within specific bands and geographic areas. The benefit of this approach is that it could minimize harmful interference between operators and support co-existence among multiple spectrum users. Under this framework, the Commission would create guidelines that are tailored for each band based on existing service rules to encourage coordination by protecting existing users while allowing new entrants to the band. The Bureau seeks to build a public record on the details of this approach, including information on resources and timeframe required to build a framework for dynamic sharing.
• Non-Exclusive Site-Based Licensing: The Bureau seeks comment on using a non-exclusive site-based licensing approach—in which entities would be granted wireless radio service licenses aligned with existing allocations and services rules for those spectrum bands—for Inventory Spectrum. This approach would require licensed entities to coordinate with one another to minimize interference. The Bureau would encourage stakeholders to apply for individual, non-exclusive authorizations and promote co-existence through a spectrum coordinator or coordination between licensees. To facilitate such co-existence, the Bureau could create guidelines for best practices in coordination. The Bureau seeks comments on whether the site-based licensing approach would be more advantageous than dynamic spectrum sharing, and whether such a determination would be better to implement in certain bands over others.
• Leasing Spectrum Inventory Licenses: The Bureau, based on past Commission initiatives to develop innovative approaches to spectrum leasing, asks for input on whether Inventory Spectrum licenses can be leased to the public even if they have not yet been initially licensed. The Bureau seeks comment on whether this approach would provide more benefits than dynamic spectrum sharing or site-based licensing, and under a leasing regime would consider developing guidelines around lessee selection and leasing arrangements.
• Special Temporary Authority (STA): The public currently has access to Inventory Spectrum through the STA process, which makes the spectrum available for limited purposes in limited circumstances. This option will remain open for users, but the Bureau seeks comment on whether there are changes to the STA process that would be in the public interest during the lapse in auction authority.
• Other Options: The Bureau requests feedback on other assignment options that would make Inventory Spectrum available. One suggestion it poses is creating experimental innovation zones in geographic areas with Inventory Spectrum, where users could study different technical approaches to the issue.

In addition to the above approaches, the Bureau poses several questions for which it seeks public input. These questions address a broad range of topics, including the benefits and drawbacks of the proposed approaches, what guidelines the Commission can implement to facilitate Inventory Spectrum access and minimize harmful interference, how adjusting the spectrum access mechanisms may improve network investment, whether any mechanism is more appropriate for a particular Inventory Spectrum band, and how the Commission can resolve issues involving mutually exclusive applications.

Takeaways

While the Commission investigates how it can assign Inventory Spectrum without its spectrum auction authority, members of Congress are still considering the issue. Senator Todd Young and Representative Bob Latta recently called for Congress to take action to restore FCC authority to issue spectrum licenses, emphasizing the risk that the United States would fall behind in wireless deployment without such authority. Senators John Thune, Marsha Blackburn and Ted Cruz introduced the Spectrum Pipeline Act of 2024, which aims to expand access to mid-band wireless spectrum. The bill, announced on March 11, 2024, includes provisions to identify spectrum that can be reallocated from federal to non-federal use and renew the FCC’s spectrum auction authority. Given that it is an election year, and in view of the difficulty faced by proposals to restore the auction authority, it may be an uphill climb for this bill to advance through the relevant congressional committees. 

The Public Notice is open for comment. Initial comments are due by April 8, and reply comments are due April 22. We are tracking updates to the space closely, so please reach out if you would like to comment on the proceeding.