At its February 2013 meeting, the FCC adopted a Notice of Proposed Rulemaking (“NPRM”) to further open the 5 GHz frequency band to expanded use by Wi-Fi devices and to adopt technical requirements for those devices to protect existing operations in the band from interference. This proceeding is likely to be of particular interest to device manufacturers, commercial wireless service providers, developers of spectrum sharing technologies, and the incumbent federal and non-federal licensees that are currently operating in that spectrum. The FCC is accepting comments and reply comments on its proposed rules forty-five days and seventy-five days after the NPRM is published in the Federal Register.
Background
With this action, the FCC proposes to make more spectrum available for Unlicensed National Information Infrastructure (“U-NII”) wireless devices (which include devices used for short range wireless local area networking and broadband access) in order to 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 such as airports and convention centers. The NPRM fulfills a 2012 Congressional mandate requiring the FCC 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 existing licensees will be protected from interference and that the primary mission of federal spectrum users will not be compromised by the introduction of unlicensed devices in this band. For this purpose, 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 FCC seeks public comment on all aspects of NTIA’s January 2013 report, including its discussion of spectrum sharing technologies and its overview of the risk elements to each type of federal operation in the proposed new U-NII bands.
The NPRM
The FCC’s proposal would allow 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. The FCC asks for public input on a number of technical rule changes to protect incumbent operations that could be affected by the introduction of unlicensed devices in the bands (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.
The NPRM also seeks comment on the potential U-NII wireless device uses of the newly opened 5 GHz frequencies, including:
the types of services/uses that could be deployed in the band;
In a statement released about the action, FCC Chairman Julius Genachowski said that the proposed changes will benefit consumers by freeing up more spectrum for ultra-fast “Gigabit Wi-Fi” and reducing Wi-Fi congestion at major hubs as well as in the home, where multiple users often operate multiple devices at the same time. Higher data speeds and greater capacity are also expected to improve HD video distribution capability and reduce the congestion caused by commercial wireless networks that offload traffic to Wi-Fi networks.
These proposed rules undoubtedly will be criticized by the NTIA,which already has publicly implored the FCC to refrain from making changes to the use of the 5 GHz band given 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. NTIA also proposed compliance tests to be used in the certification of U-NII devices in order to mitigate the potential interference to the Federal Aviation Administration’s Terminal Doppler Weather Radar systems operating in the 5600-5650 MHz band and urged the FCC to address compatibility issues associated with Unmanned Aerial Systems operations in the 5250-5850 MHz band as well. The Intelligent Transportation Society of America (“ITS America”) has expressed concern that new unlicensed devices in the 5.850-5.925 GHz band could interfere with connected vehicle systems operating in the band and urged the FCC to defer action until the Department of Transportation decides whether to implement a connected vehicle network.
In addition to requesting comment on its plans to make more 5 GHz spectrum available for unlicensed devices, the FCC also proposes changes to its equipment authorization procedures for U-NII devices and revisions to the rules governing devices operating in the existing U-NII bands that seek to ensure technical compliance and curtail interference to incumbent federal operations. It proposes a twelve-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. The FCC also proposes to grandfather U-NII devices that are already installed or in use for the life of the equipment.
If you would like to discuss the issues raised by the NPRM or file comments, please do not hesitate to contact us.
Catherine Wang
catherine.wang@bingham.com, 202.373.6037
Jeffrey Strenkowski
jeffrey.strenkowski@bingham.com, 202.373.6002
Contacts
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Wang-CatherineThis article was originally published by Bingham McCutchen LLP.