2/28 FCC Comments on Spectrum Secondary Markets

New America's Open Technology Institute wrote and filed comments alongside Public Knowledge (OTI and PK) responding to a proposal from the Federal Communications Commission to establish an initiative to improve competition in the wireless market through the partitioning and leasing of spectrum. OTI and PK urged the Commission to go beyond its current proposal to offer carriers incentives for engaging in secondary market transactions and to instead adopt rules that would fundamentally restructure the market in a manner that would help smaller carriers and community anchor institutions compete for access to spectrum bands previously dominated by the largest providers. OTI and PK advocated for the adoption of "use it or share it" rules that would allow smaller providers to access spectrum when unused by licensees that have declined to deploy service or construct networks until such time that the licensee opts to begin providing service. An introduction and summary is available below:

New America’s Open Technology Institute and Public Knowledge (“OTI and PK”) hereby provide comments responding to the Commission’s Further Notice of Proposed Rulemaking (“FNPRM”). OTI and PK commend the Commission for its efforts to improve competition in the wireless market. We agree the proposed enhanced competition incentive program (ECIP) will be of some benefit in opening the vast warehouse of fallow mobile carrier spectrum to smaller operators in some rural, tribal and underserved areas. However, we also believe the proposal is woefully insufficient to achieve the proceeding’s broader goals. The proposed incentives are likely inadequate to prompt most large providers to partition or lease excess and unused spectrum to smaller carriers rather than simply hoarding it as many have done for decades. Spectrum warehousing is an entrenched behavior shaped by the spectrum market— and the Commission’s auction rules—that therefore requires a more holistic approach to fundamentally shift the incentive structures that exist in the spectrum market. A program that offers marginal benefits to carriers to participate will likely only yield results on the margin.

OTI and PK urge the Commission to take a proactive approach to catalyze spectrum use in areas licensees have not deployed service through “use it or share it” rules. Through such rules, competitive providers, community anchor institutions, and other entities seeking to improve broadband access in unserved and underserved areas such as local governments could— through an automated spectrum database coordinator—utilize spectrum in areas where a licensee has failed to deploy service. The authorization would be secondary and contingent, the same as current General Authorized Access to vacant Priority Access License (PAL) channels in the Citizens Broadband Radio Service (CBRS) band is today. The licensee could opt to deploy service on the band whenever it chooses—but up until such time, consumers and the public interest would benefit by the spectrum being put to full use to connect communities.

There are extensive precedents for use it or share it rules and a wide range of public interest benefits in addition to the stimulation of secondary markets that the Commission should consider. These benefits include improving the coverage and capacity of broadband in rural, Tribal, and other underserved areas to reduce the digital divide; There is ample support in the record for use it or share it rules as well, noting the consensus among competitive wireless providers, public interest groups, and the technology industry that such rules promote strong competition in the wireless market and widespread societal benefits.

Given the prime opportunity this proceeding represents, and the Commission’s directive from the White House Executive Order on Competition to improve competitive access to spectrum, the Commission should adopt a more proactive and holistic strategy through the adoption of use-it-or-share-it or use-it-to-keep-it rules.