FCC Opens 4.9 GHz to FirstNet; CERCI Promises Litigation
A staunch opponent of giving FirstNet access to the 4.9 GHz band says the FCC decision to do that will head to court. The approved order, released Tuesday, said its aim is "more robust use" of the band, with FirstNet able to use unassigned spectrum in the band. Coalition for Emergency Response and Critical Infrastructure (CERCI) Chairman Kenneth Corey called the FCC order "unlawful, unnecessary, and an affront to public safety communications professionals across the country." He added, "This decision will be challenged and will be litigated."
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In the 51-page order, the agency said the best way of expanding use to various public safety operations would be via assigning a nationwide overlay license to the band's manager, and that manager -- once selected -- could enter a sharing agreement with FirstNet for unassigned portions of the band as part of FirstNet's nationwide public safety broadband network. The band manager, working with FirstNet, "can enable greater public safety use, including for 5G, and has the potential to free up new opportunities for expanded use in the band in the near term," according to the order.
The commission pushed back on criticisms that an overlay license could force out incumbent band users. Instead, the FCC called a nationwide overlay license and a sharing agreement with FirstNet "the best approach to ensure that 4.9 GHz band spectrum is more fully utilized in the near term," while also protecting incumbents.
Moreover, the commission rejected arguments that FirstNet hasn't demonstrated a need for more spectrum for its public safety broadband network. It pointed to public interest benefits that will come from FirstNet access, including additional support and services to public safety subscribers. Enabling FirstNet operations in the band isn't incompatible with existing uses of the band by public safety, the FCC said. "Our decision today will not disrupt existing public safety operations, take away current priority treatment in the 4.9 GHz band, or remove public safety’s ability to design their own networks as our decision today does not authorize the Band Manager or FirstNet to alter or eliminate the rights of incumbent licensees."
The order was approved 4-0; Commissioner Anna Gomez didn't vote. She had been expected to recuse herself due to work she did before joining the agency (see 2408130035).
As part of the order, the FCC kept its freeze on applications for new licenses in the 4.9 GHz band and reinstated its freeze on incumbent licensees seeking to modify their licenses or license new sites. The agency said it wanted "a stable spectrum landscape" for better analysis of the upcoming data collection of licensed operations.
Some public safety circles applauded the order. "Today is a victory for public safety over private profit," Fraternal Order of Police President Patrick Yoes said in a statement. The FOP "campaigned hard to beat back the efforts of for-profit companies and organizations... to use the false banner of ‘local control’ to encroach upon public safety’s 4.9 GHz spectrum for their own commercial purposes.” He said opposition to opening the 4.9 GHz band to FirstNet came from private sector groups, critical infrastructure operators and transportation providers who wanted public safety 4.9 GHz spectrum "for their own commercial purposes." He added, "The lack of a national licensee to administer the band within [the broadband network] would have resulted in commercial entities 'cherry-picking' the most desirable areas for 5G investment, while leaving much of the country unversed."
FirstNet operator AT&T "applaud[s] the FCC for acknowledging the overwhelming public safety support for a nationwide deployment of their 4.9 GHz spectrum," company Executive Vice President-Federal Regulator Relations Rhonda Johnson said in an emailed statement. "The FCC’s order will protect incumbents and increase usage of this spectrum, boosting public safety’s access to the life-saving capabilities of 5G and helping them serve their communities."
CERCI's Corey said the decision greases the path to commercial use of FirstNet spectrum. "Just as AT&T profits from commercial use of Band 14 via FirstNet, it will do the same with the 4.9 GHz band," he said. "Regrettably, the FCC felt it was more important to gift AT&T with $14 billion in free spectrum for commercial use than to heed the concerns of those on the front lines of public safety communications.”
Competitive Carriers Association said it was "disappointed with the FCC’s decision to grant" FirstNet access "and, by extension, AT&T." It added, "This move raises concerns about long-term local control of important public safety communication resources and represents an anti-competitive spectrum opportunity for AT&T."
CERCI members T-Mobile and Verizon didn't push as hard as they might have at the FCC or in Congress, as both have deals pending at the FCC and don't want to get into a fight with FCC Chairwoman Jessica Rosenworcel or Commissioner Brendan Carr, New Street Research's Blair Levin said Tuesday. Additionally, "they think their side will win in court." He said a court challenge is likely as the coalition has already argued that the Public Safety Spectrum Alliance's proposal -- allied with AT&T and a promoter of the fixed overlay license approach -- is unlawful and that the FCC lacks statutory authority. He said CERCI will also argue that state and local public safety organizations have strong reliance issues with the current allocation.