FCC Proposes to Increase Spectrum Available for Unlicensed Devices in the 5GHz Band

February 21, 2013

The Federal Communications Commission (“FCC” or the “Commission”) initiated a rulemaking proceeding yesterday that could make up to 195 megahertz of additional spectrum in the 5 GHz band available for unlicensed wireless devices. The Commission expects that making more spectrum available for Unlicensed National Information Infrastructure (“U-NII”) devices (which include devices used for wireless local area networking and broadband access) will “accelerate the growth and expansion of new Wi-Fi technology that can offer faster speeds of one gigabit per second or more, increase overall capacity, and reduce congestion at Wi-Fi hot spots.”

The notice of proposed rulemaking released on Wednesday fulfills a 2012 Congressional mandate requiring the Commission to initiate a proceeding to allow unlicensed U-NII devices to operate in the 5.35-5.47 GHz band if, in consultation with the National Telecommunications and Information Administration (“NTIA”), “it determines that licensees will be protected by technical solutions and that the primary mission of Federal spectrum users in the band will not be compromised by the introduction of unlicensed devices in this band.” Congress also directed NTIA to evaluate spectrum sharing technologies and potential risks to federal users if unlicensed U-NII devices were permitted to operate in the 5.35-5.47 GHz and 5.85-5.925 GHz bands. The Commission seeks comments on a number of findings contained in NTIA’s report, which was released in January.

The FCC proposal would go beyond the Congressional directive by allowing U-NII devices to operate in both the 5.35-5.47 GHz and 5.85-5.925 GHz bands, which are currently used for various federal and non-federal services. In order to protect incumbent operations that could be affected by the introduction of unlicensed devices in the bands, the Commission seeks comment on a number of technical rules changes (dealing with maximum power spectral density and out-of-band emissions, for example) and spectrum sharing technologies (including sensing-based technology, geo-location-based technology, and beaconing) that could mitigate the potential for harmful interference.

Both NTIA and automotive industry representatives filed letters with the Commission in anticipation of the announcement. In its February 19, 2013 letter to the FCC, NTIA pointed out that aeronautical mobile telemetry (“AMT”) systems may be relocated from the 1755-1850 MHz band to the 5150-5250 MHz band in the event that the 1755-1850 MHz band is reallocated for commercial mobile broadband services and recommended that the FCC “refrain from proposing to change the U-NII rules in the 5150-5250 MHz band until NTIA and the FCC conclude how they will address the accommodation of the AMT operations currently using the 1755-1850 MHz band.” NTIA also proposed compliance tests to be used in the certification of U-NII devices in order to mitigate the potential for interference to the Federal Aviation Administration’s Terminal Doppler Weather Radar systems operating in the 5600-5650 MHz band and urged the Commission to address compatibility issues associated with Unmanned Aerial Systems operations in the 5250-5850 MHz band as well.

Automotive industry representatives also urged caution In a February 12, 2013 letter to the FCC, the Intelligent Transportation Society of America (“ITS America”) expressed concern that introducing a substantial number of unlicensed devices in the 5.850-5.925 GHz band could interfere with connected vehicle systems operating in the band. While not overtly opposing the FCC proposal, ITS America urged the Commission to “allow for due diligence on this critical issue” by ensuring that any proposed timelines “are consistent with the NTIA schedule for completing its quantitative evaluation” and “do not precede a decision by the U.S. Department of Transportation (DOT) regarding implementation of a connected vehicle network . . .” ITS America also cautioned that the evaluation process “should be allowed to proceed without a predetermination by the FCC that spectrum sharing in the [5.850-5.925 GHz band] should be the ultimate outcome.”

In addition to making more spectrum available for unlicensed devices, the Commission also proposed changes to its equipment authorization procedures for U-NII devices and a number of rule changes aimed at ensuring technical compliance and curtailing interference to incumbent federal operations. The Commission has proposed a 12 month timetable for manufacturers to produce U-NII devices that comply with the new or modified rules and a two-year timetable for requiring that any U-NII devices manufactured in or imported into the U.S. for sale comply with the new or modified rules.

Comments are due 45 days after the notice of proposed rulemaking is published in the Federal Register.

If you would like to further discuss this rulemaking or related issues, please do not hesitate to contact us:

Catherine Wang             

Timothy Bransford       

Daniel Brooks                 



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This article was originally published by Bingham McCutchen LLP.