Get Ready for the 2022 Season of Spectrum Wars!

It isn’t the sultry Regency drama of Bridgerton, the action psycho-drama of Moon Knight, or even the, um, whatever the heck Human Resources is. But for those of us in Telecom land, the annual season of Spectrum Wars holds an attraction like no other. This year is shaping up to be a major spectacular, with lots of old plot lines coming back (like 5.9 GHz), sleeper issues (like 12 GHz) and an unexpected new dramatic plotline around the FCC’s overall auction authority — and More! With the FCC close to finally getting a full cast, it’s looking like 2022 could be a total blockbuster (which will, of course, end in the cliffhanger of a new Congress — with Ted Cruz as potential Chair of the Senate Commerce Committee!).


Of course, not every potential plotline will work out, and we’ll undoubtedly have plenty of surprises along the way, but here’s a (not so) brief recap of what you need to know to follow along this season. If I missed your favorite show, let me know in the comments.


(And no, we’re not going to talk about net neutrality. Or any of the broadband money. This is just spectrum, not wireless service.)

The four seasons of the Trump Administration under Chairman Pai (focusing just on spectrum) basically all focused on “the race to 5G.” Or, more accurately, “the race to allocate 5G spectrum.” You can read my overall summary of Pai’s spectrum legacy here. The 2021 Season mostly dealt with fallout from the previous few seasons, which will fuel most of the plotlines for 2022 as well. But we are also going to start moving from “the race to allocate 5G spectrum” to “we allocated spectrum, what happens now? And where do we go from here?”


Meet the New and Returning Cast!


This season mixes things up from 2020 in a big way. Not only do we have new characters, but virtually every returning character is playing a new role! Here’s a very brief rundown.


FCC Chairwoman Jessica Rosenworcel— Rosenworcel’s character arc has taken her from an advisor to Commissioner Copps all the way to Chairwoman of the FCC. Rosenworcel holds the distinction of being the first woman to serve as full (rather than acting) Chair. I have described Rosenworcel as the wonkiest, nerdiest person to every lead the FCC – and mean that as a high compliment. As I’ve written before, Rosenworcel’s style is low-key, but determined and effective. She embodies the old adage: “You can get a lot done in Washington if you don’t care who gets the credit.”

Rosenworcel has spent much of her career as an FCC Commissioner focusing on spectrum, both licensed and unlicensed. No one is better prepared to think about spectrum in new ways – including how to best serve the public interest. But Rosenworcel is also a veteran of the Senate, and works within the boundaries of “the art of the possible.” How far can she go? Especially given the current mess around federal allocation and the inevitable push to maximize auction revenue from Congress?


FCC Commissioner Starks – Starks has served for approximately 5 years now as Commissioner, but either in the minority or in a deadlocked 2-2 Commission. Because in these hyper-partisan times we no longer worry about trying to get at least one member of the other party on board, and because it is now expected that members of the same party vote as a block, Starks has either been part of a 5-0/4-0 vote or on a 3-2. Once the Commission gets its third Democrat, Starks will have new opportunities and new challenges. So far, Starks has taken the place of Mignon Clyburn as the “conscience of the Commission,” often stressing consumer protection and social justice in his statements. How will he leverage his new role in the majority to further these goals?


(Soon to be) FCC Commissioner Gigi Sohn – Huge personal and fan fave, Sohn makes the transition from advocate to full Commissioner. That is, as soon as she finally gets her confirmation vote from the full Senate. A fervent believer in competition, social justice, and consumer protection, Sohn is also a total bad-ass. But part of being an effective bad-ass is a strong pragmatic streak. Sohn has also made it clear that she understands the difference between being an advocate and being a decision maker. How will she adjust to her new role? Viewers are eager to find out!


FCC Commissioner Brendan Carr – As part of the Pai FCC, Carr played his part backing the Chairman’s agenda. This often meant being an aggressive standard bearer along partisan lines. In the 2021 season, with the power to veto any proposal by the Chair, Carr moved to moderate and emphasize points of agreement over conflict. At the same time, however, he made it clear that he wasn’t shifting on any of the big ticket issues such as net neutrality. As Carr moves from holding the deciding vote to a minority vote, how will he jump? Will he model himself on past minority Commissioners like Michael Powell in the 1990s and Copps in the early 00s – someone who trades votes for concessions? Or will he be more like Pai and O’Reilly, taking a partisan line with fiery dissents? And how does this play out in spectrum?


FCC Commissioner Nathan Simington – Appointed in the waning days of the Trump Administration, Simington remains a mystery going into 2022. Trump rammed through Simington’s appointment, and Republicans went along, primarily to create a 2-2 deadlock if Trump lost the election and Pai followed custom and stepped down from the FCC. Both these things came to pass, and Simington has held up his end of the bargain by maintaining solidarity with Carr. But with the FCC shifting into a 3-2, what will Simington do now? Specifically, what will he do about spectrum policy?


NTIA Administrator Alan Davidson – The first really new character for our 2022 season! Davidson was confirmed by the Senate in January as head of the National Telecommunications Information Administration. NTIA is supposed to manage federal spectrum and act as the point of interface between the Administration and the FCC (which is an independent agency). Davidson faces lots and lots of challenges in his new role. NTIA did not have an actual Administrator for most of the Trump Administration – a factor that contributed to the “FCC v. Everyone” plotline. Davidson needs to deal with the mutiny of key federal agencies on spectrum, and develop a spectrum policy for the Biden Administration (something that the Trump Administration never managed to do.) To add to the drama, Davidson comes with little direct experience in spectrum policy. As if this weren’t a big enough set of challenges, Davidson also needs to create the biggest broadband subsidy program in history ($45 Billion) while helping the Administration in developing a coherent policy on privacy and internet governance. Can anyone do it, let alone someone without a spectrum policy background?


OK, that’s the main cast. I’ll skip the Congressional dramatis persona. But (because DC) the likelihood of Congress changing hands in the midterms hangs over everything.



Main Storyline #1: The FCC v. Everybody Else (Spectrum Management, 6 GHz, 5.9 GHz, C-Band)


By the time we reached the end of 2021, federal spectrum management for 5G and Wi-Fi 6 boiled down to “the FCC against everybody.” In particular, the biggest federal users – Department of Defense and Department of Transportation – were actively undermining the FCC’s spectrum allocation decision at every turn: lobbying Congress, strategically leaking stuff to the press, and cranking out an endless series of studies and complaints about how the FCC was out of control and just didn’t care about saving lives. What was worse, these complaints weren’t even about federal spectrum being reclaimed and repurposed for commercial use. These agencies were fighting the FCC about bands already assigned for commercial use, and therefore by law solely under the FCC’s jurisdiction.

Rather than link to each individual statement, see here for C-Band background (also here, here and here). For a general overview of how federal spectrum management is supposed to work, and how it has turned into a total ****show, see this White Paper from my Public Knowledge colleague Greg Guice, and Digital Progress Institute’s Joel Thayer. But to break these down into some specific plotlines to watch in 2022.


The Overall Issue of Spectrum Management. As noted, this is a systemic problem that over the last 5 years has gone from problem to full blown crisis. Last June, the Government Accountability Office issued a report on the process problems and a set of recommendations on how to fix it. Davidson and Rosenworcel have both committed to working to solve the problem, with movement along the line recommended by GAO. But how to make the other agencies go along? The chief problems arise when the agencies (mostly DOT and DOD) decide to go around the existing process and wage war in the press or through their committees of jurisdiction (primarily Armed Services Committee for DOD (as happened with Ligado) and House Infrastructure and Transportation Committee for DOT (in the Senate, Commerce has jurisdiction over both FCC and DOT). And, as we saw in the C-Band and 5.9 GHz band, agencies can use their own regulatory powers to try to undermine the FCC’s decisions by creating “facts on the ground” that work against the FCC.


In addition to the general question of how Davidson and Rosenworcel manage to reconstruct a working relationship between the FCC, NTIA and other federal agencies – and what action Congress may take in either direction – we can expect plenty of flair ups to keep the action going and lend all kinds of tension to what should be one of the most boring areas of policy in the world.


6 GHz: This one is more of an unfinished piece of business rather than a likely flare up point. But it’s worth reviewing here because what happened at the end of last season. In 2020, the FCC authorized what we call an “unlicensed underlay” in the 6 GHz band. That means the FCC permitted unlicensed operations under a set of fairly restrictive rules and on the condition that devices not interfere with the licensed users. This used to be the standard way we authorized unlicensed service, but in recent years the FCC has focused on finding places where it can authorize bands primarily for unlicensed use. Because, as we see here in the 6 GHz band, actually protecting licensed services in the same band as unlicensed services is a royal pain in the neck. It means permitting much lower power levels than in a band without interference protected incumbents, and often these days additional mitigation mechanisms.


And the 6 GHz band didn’t just have any old incumbents. Power utilities use microwave links in these bands for communications, as do public safety entities and a bunch of others. Needless to say, this made opening the band for sharing very contentious, with lots of claims that authorizing this would crash our electric grid and prevent life-saving services from working, etc. The Department of Energy, which normally never weighs in on spectrum issues, opted to weigh in here in support of the electric utilities.


But opening the 6 GHz band for unlicensed use created 1,200 MHz of contiguous spectrum. This, in turn, opened up for the first time sufficient contiguous unlicensed spectrum in the United States to enable the deployment of gigabit Wi-Fi. (Public Knowledge and Open Technology Institute explained all this and a whole lot more in the amicus brief we filed in support of the FCC). So the FCC authorized use with a lot of interference mitigation protections. First, the Order limited use to really low power and indoor only. Because (relatively) high-frequencies like 6 GHz don’t go through walls particularly well (if at all), and because you don’t usually put power lines directly next to someone’s window (usually there is at least a couple of yards of separation, if not more, to protect folks from the electrical line), the FCC reasoned that such a low-power underlay would not interfere with the incumbent users. The FCC allowed somewhat higher power in some parts of the band for outdoor use, subject to an automatic frequency control (AFC) system to prevent operation in areas where it might cause interference to licensed users.


Of course, the existing licensees were unhappy and sued (happily, DOE stayed out of it). On December 28, 2021, the D.C. Circuit issued a decision largely upholding the FCC. (AT&T Services, Inc. v. FCC). Importantly, the decision found that:

  1. The court (still) owes the FCC the highest degree of deference when it comes to technical spectrum stuff. Srsly. As long as there is at least a modest shred of evidence supporting the FCC in the record, and the FCC address every reasonable argument, we affirm.


  1. This is true even if you’re public safety. Being public safety doesn’t mean we disregard the FCC’s policy expertise. It does mean the FCC has to explain why it didn’t do what you wanted, but if they explain – and the explanation is not completely whackadoodle, we affirm.


  1. We mean it. Even if you are licensed spectrum and the FCC is authorizing unlicensed spectrum. The FCC gets to decide. Licensed and unlicensed are both technical decisions about spectrum use committed to the expert agency’s predictive judgment. So it doesn’t matter that you don’t thing the interference mitigation is “good enough.” As the long as the FCC explains why the FCC thinks it’s good enough, can point to some evidence in the record, and is not obviously whackadoodle, we affirm.


  1. Finally, the standard is not “will there never be any interference.” As long as the Commission finds that the risk of harmful interference is sufficiently low as to be acceptable in light of the public interest tradeoffs, and can point to enforcement mechanisms to protect licensees in the event harmful interference does occur, we affirm.


Needless to say, this opinion puts the FCC in a fairly strong position when challenged on spectrum decisions. Even when public safety is implicated. Even when expanding unlicensed spectrum access.


So what is left to do? The D.C. Circuit remanded to the FCC on one point raised by broadcasters (who use the band for mobile news collection) that it had failed to address at all, so the FCC will have to address that (the Order itself was not vacated, so Wi-Fi 6e is getting deployed. But more substantially, the FCC left open some additional possible uses in a Further Notice of Proposed Rulemaking. One of these, authorizing very low-power use outdoors, would be a real boost for wearable virtual and augmented reality devices. Currently, the slower throughput on existing wi-fi means that googles, gloves and anything else that inputs into the VR needs to be wired with fiber strands. Gigabit Wi-Fi through VLP would allow parties to cut the wires on the wearables. But I wouldn’t expect any more drama from DOE. So this is likely to just be a “wrap things up” episode.


5.9 GHz. In 2020, the FCC also acted in the long-running fight over allowing unlicensed access in the 5.9 GHz band. The FCC first proposed allowing some sort of sharing (such as an unlicensed underlay) all the way back in 2013. After much game playing by the relevant Department of Transportation (DOT) agencies (National Transportation Safety Board (NTSB) and the National Highway Traffic Safety Administration (NHTSA)) and the auto industry over the possibility of sharing all or part of the band, the FCC finally lost patience. Instead of an underlay, the FCC reclaimed the lower 45 MHz of the spectrum for unlicensed use. This left 30 MHz for Intelligent Transportation System (ITS). The FCC also phased out the previous standard – Direct Short Range Communication (DSRC) – in favor of the 5G based Cellular Vehicle to Vehicle/Infrastructure standard (known by the much simpler acronym as C-V2X). Needless to say, the auto industry appealed to the D.C. Circuit. While one should be careful about reading too much into oral argument, it did not seem particularly encouraging for the auto industry.


Unfortunately, unlike the DOE, the DOT does not appear ready to give up on relitigating the past and trying to get the FCC to reconsider its decision (or get Congress to require the FCC to reconsider its decision). As you can see in this article here, current and former DOT officials are all lamenting how 30 MHz just isn’t enough to do all the wonderful things they promised but didn’t manage to do with DSRC. Meanwhile, the FCC still has unfinished business with 5.9 GHz, such as determining whether to allow general outdoor use in the 5.9 GHz band. Congress has allocated money for the auto industry to retune the handful of deployed DSRC networks to C-V2X, but only if they stay within the remaining authorized 30 MHz. But can the auto industry take the money (or move forward on C-V2X) when DOT keeps insisting that it needs all 75 MHz to do anything useful? Will DOT end up stalling C-V2X by refusing to get in gear?


C-Band/FAA – What a wild opening of the year! You can read my in-depth history of everything up until November 2021 here. We then had a wild time with the FAA threatening to shut down flights on the grounds that 5G operations in C-Band would potentially interfere with airplane and helicopter altimeters, AT&T and Verizon offering a bunch of temporary concessions to address FAA concerns, and the President himself weighing in to get things back under control. Ultimately, the FAA adopted its “alternative means of compliance” (AMOC) process to allow planes to certify that the existing use of C-Band won’t interfere with the specific altimeters on the relevant plane models. Things [settled down], we had [a hearing] where most folks acknowledged that this could have been handled a lot better, and FAA Administrator Dickson decided to step down to – you guessed it – spend more time with his family.


Problem solved, right? Umm . . . no. AT&T and Verizon agreed to keep the relevant mitigation measures in place around airports until July. It’s not clear what happens once we hit July. Will the FAA have a new process in place? Will there be some sort of permanent change to the deployment of C-Band networks around airports? (Keeping in mind that the area around major airports often includes major urban areas, like New York City and San Francisco). And what happens in 2023, when the “upper C-Band” licenses come online?


All these issues flow from the ongoing conflict around federal spectrum policy. Resolving these flashpoints will involve resolving the broader issues of federal spectrum policy, and how these specific issues get resolved will clearly influence how the FCC, NTIA and Congress approach the bigger questions.


Main Storyline #2: The Last FCC Auction? (2.5 GHz, Auction Authority/Revenue)


Since 1993, the FCC has distributed exclusive licenses by auction. But Congress hasn’t made the authority of the FCC to distribute licenses by auction permanent. Instead, it renews it for some set of years. Why? In large part because of the way the Congressional Budget Office (CBO) “scores” legislation and spectrum auctions. When Congress directs the FCC to conduct a specific auction, it scores how much money the auction will raise, less the anticipated cost of relocating federal users (you can see an old example of this here). When Congress gives the FCC a general renewal of auction authority, the CBO tries to estimate how much total net revenue the FCC will bring in over the length of time authorized. CBO’s scoring horizon is ten years, so auction authority never gets extended for more than 10 years.


It turns out, however, that scoring spectrum auctions is super hard. So much depends on so many variables – many of which cannot possibly be known at the time the legislation is written. Additionally, if CBO scores general auction authority, it cannot subsequently score any future auctions conducted pursuant to that authority – since that money was already counted. Of course, this rule has lots of weird, complicated exceptions. But the upshot of all this is that every now and then Congress has to renew the FCC’s auction authority, or it expires. The FCC’s current auction authority is set to expire at the end of the current fiscal year: September 30, 2022.


CBO score is incredibly important whenever a Democrat is President and Republicans once again care deeply about deficits (joined by a bunch of D deficit hawks as well). Money raised from spectrum auctions can be used as a “pay for” against other spending. This creates a lot of incentive to use spectrum as a piggy bank rather than actually figure out the best spectrum policy. But it also makes renewing spectrum auction authority a “must pass” bill.


So just renew the auction authority, right? Hah! This is Washington at its game playing finest. Of course everyone wants to renew the auction authority. But this becomes a mix of spectrum policy fights, such as efforts by Republicans to eliminate spectrum aggregation limits (limits on how much any one carrier can win in a given auction, or how much spectrum a carrier can hold) or efforts to push designation of certain bands for auction. This invariably also means fights between supporters of maximizing exclusive license spectrum (which potentially drives up the CBO score, which offsets other spending) with those supporting unlicensed spectrum (which CBO does not score as producing revenue). And because members of Congress like to use spectrum revenue as “pay fors,” passing auction authority usually gets bundled up into major spending bills where the primary goal of the bill drafters is squeezing as much money out of CBOs spectrum auction score without any regard to whether this makes any policy sense or not.


Meanwhile, as sometimes happens with spectrum auction revenue, a bunch of people have proposals on how to spend the auction money in ways that actually serve the public interest rather than just go to the Treasury for deficit reduction. My employer Public Knowledge has signed on with the Airwaves for Equity campaign, which would use a portion of the proceeds of spectrum auctions to fund digital inclusion programs. Chairwoman Rosenworcel has suggested using auction revenue to fund transition to next generation (NG)911. These are not, of course, mutually exclusive. The overarching idea is that since spectrum auctions are supposed to be about efficient distribution, not raising revenue, we use that money to fund public interest stuff in telecom.


We can expect this debate to go on until we get very close to the end of September, since God forbid Congress should do something before it’s a crisis. Meanwhile, the FCC has one spectrum auction scheduled, auctioning the remaining 2.5 GHz spectrum. While this spectrum is extremely useful “midband” spectrum for providing 5G, the history of the band leaves it incredibly fragmented and messy to auction. But because the FCC auction authority expires September 30, with no guarantee of renewal, the FCC is racing to get the auction designed, run and completed before September 30. Never has something so insanely boring been charged with such suspense!


Some Returning Favorites (12 GHz, Network Resiliency)


No long-running series is complete without returning favorites. The potentially largest spectrum prize is the proceeding to open 500 MHz in the 12 GHz band (specifically, 12.2-12.7 GHz) for a bunch of new secondary uses.


12 GHz Band. The relevant band, is part of the larger “Ku Band” used for satellite downlink. In the U.S., this was primarily used for DBS. In the early 00s, the FCC opened the band for terrestrial use for limited, one-way video and data, creating the “Multichannel Video and Data Distribution Service” (MVDDS). DISH holds about 75% of the MVDDS licenses. Combined with the other license holders, DISH began pushing for permission to convert MVDDS licenses for two-way mobile use back in 2016. Over the years, a fairly broad coalition of folks (including Public Knowledge) joined together in the 5G for 12GHz Coalition. In addition to potentially adding 500 MHz of mid-band spectrum for 5G use – and primarily in the hands of would-be national competitor DISH rather than going to the top 3 carriers – PK and other public interest groups have pushed for the FCC to authorize an unlicensed underlay, “use or share,” and other sorts of open/shared spectrum.


The primary opponents are other satellite services — primarily DIRECTV (whose current parent company, AT&T, does not welcome increased competition from DISH) and StarLink. For those unfamiliar with StarLink, this is Elon Musk’s/SpaceX’s satellite internet product. Musk has sold this as a rural broadband solution, and it has its supporters and its skeptics. StarLink uses the 12 GHz band for downlink and, like any other spectrum user in any other spectrum proceeding, argues that allowing DISH to operate mobile in the band will cause harmful interference. StarLink has theoretically been a bit more open to the possibility of sharing with an unlicensed underlay, but has not warmed to our suggestion of adopting rules similar to those adopted in the 6 GHz proceeding.


The FCC opened a rulemaking proceeding on this in early 2021. We’ve reached the stage in the record where pretty much everything sayable at this stage has been said. Will the FCC decide to issue an order with service rules, possibly attaching a Further Notice of Proposed Rulemaking to drill down on remaining questions? Or will the proceeding just sit there?


Network Resiliency. Despite the fact that network resiliency covers all networks, I’ve dropped it here in spectrum because wireless resiliency gets the most attention. Rosenworcel has been a major advocate for the FCC doing more to monitor and require spectrum resiliency for a decade. During the Trump years, she was largely a voice in the wilderness. But now that she is in charge, she has opened a proceeding to see what more the FCC can do. One piece of this is whether to make the current voluntary wireless framework – the industry agreement that currently governs how carriers work together in a disaster – mandatory. The proceeding also asks what else the FCC should do to promote resiliency. Given the priority Rosenworcel has given this issue over the years, I think we can expect to see action on this in 2022, especially once the FCC comes to full strength.


The Unexpected Reboot (Receiver Standards)


No programming schedule would be complete without a reboot, and Spectrum Wars is no exception. At the Mobile World Conference 2022, Rosenworcel teased the release of a Notice of Inquiry (NOI) on receiver standards at the April FCC meeting. Receiver standards has seen interest for decades, particularly since the FCC’s 2002 Spectrum Taskforce Report, so spectrum wonks are extremely excited to see if this reboot works out.


For those not familiar with the receiver standards debate, a brief summary. “Interference” is a function of not simply the energy and frequencies of the transmission, but also of the robsutness and sensitivity of the receiver. So you can create much more efficient use of spectrum by mandating standards for receivers in addition to mandating rules for transmitters. This applies not simply to devices in the band/service at issue. It applies even more so to devices in neighboring bands. For example, the entire fight about whether 5G in C-Band interferes with operation of altimeters over 200 MHz away is a function of whether the 5G device energy leaks into the altimeter band (something called out-of-band-emissions or OOBE) and whether altimeters pick up signals outside of the band authorized for altimeters and into C-Band.


Traditionally, the FCC regulates transmission via licenses and service rules, but not transmitters. That was fine back in the day, when there wasn’t much demand for new services, not much changed in the spectrum environment, and you could count on the rules for adjacent bands staying constant. Building better receivers costs more money than building cheap receivers, so manufacturers of pure receiver devices (like televisions or altimeters) have incentive to build minimal protections into receivers to cut costs. Unfortunately, as demand for spectrum increases astronomically, we need to repurpose spectrum and expand the uses in various bands. But doing so creates interference for receivers built for the old environment.


The result is a serious NIMBY problem. Traditionally, the FCC requires new services to protect existing services without regard to the crappiness of their receivers. This imposes extreme limitations on new services that significantly diminish their utility. Worse, as demonstrated by the C-Band fight, it is often impossible for the FCC to know with any certainty just how bad the existing receivers are. Existing spectrum users in other bands insist that the FCC prohibit any uses that might possibly interfere, no matter how crappy their receivers may be and how far into neighboring bands these receivers “listen.”


Given how much receiver standards could improve spectrum efficiency and effectively make more spectrum available, why hasn’t the FCC imposed receiver standards before? Two reasons. First, pressure from incumbents. The last major receiver standard push came after the FCC Spectrum Taskforce Report recommended pursuing it, and it faced uniform resistance from incumbents. These days, however, you have classes of incumbents (like the wireless industry) that desperately want to impose receiver standards so they can use more spectrum more intensely.


Second, it’s unclear that the FCC has legal authority to create receiver standards. Pretty much all the FCC’s wireless authority is geared toward regulating the transmission of energy, not reception. This is not to say that the FCC necessarily lacks authority to impose receiver standards. But since the FCC lacks explicit authority to regulate receivers, the legal question remains.


Hopefully, the receiver standards reboot will go better than the Cowboy Bebop reboot. (Yes Netflix, still sore you didn’t renew for another season.)





All in all, it looks like an exciting season for 2022. Billion dollar stakes, refreshing changes in cast, and a huge range of interconnected issues. Let the Spectrum Wars 2022 season begin!



Stay tuned . . . .

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