1/29 FCC Reply Comments with Public Knowledge Opposing Changes to Citizens Broadband Radio Service Licensing Rules

New America's Open Technology Institute filed reply comments with the Federal Communications Commission (FCC) with Public Knowledge urging the Commission to retain the licensing rules for the Citizens Broadband Radio Service 3.5 GHz band of spectrum. The rules, finalized by the FCC in 2016, struck the correct balance to spur growth and investment in the 3.5 GHz band from a variety of entities and industries, while also empowering mobile carriers to use the spectrum to bolster networks ahead of the deployment of 5G. In particular, OTI and PK stress that the FCC retain small, targeted areas for licenses at a census tract level and that the FCC resist calls to lengthen the terms of licenses to 10 years with the expectation of renewal, as opposed to the current three-year time frame. The changes being considered by the FCC would benefit only the largest, nationwide mobile carriers and would push competitive carriers and new entrants to the wireless space out of the CBRS band, precluding the innovative services from using the 3.5 GHz band as the original CBRS rules facilitated so well. An Executive Summary of OTI and PK's comments is copy and pasted below:

New America‘s Open Technology Institute and Public Knowledge (hereinafter ―OTI & PK) once again urge the Commission to retain the current CBRS licensing rules and to proceed expeditiously to open the band for GAA use and, as soon as feasible, PAL assignments. The Commission should not fundamentally redefine Priority Access Licenses (PALs) and adopt an industrial policy that refashions PALs to tightly fit the business model of national carriers, thereby foreclosing potential competitors to, or substitutes for, the offerings of the largest mobile carriers. The Commission should instead adhere to the statutory objectives of Section 309(j) and trust market forces by retaining the rules the agency adopted unanimously in 2015. Larger license areas, long-term licenses and non-competitive renewal would convert the CBRS band from a flexible, small cell band that facilitates the widest possible variety of users and use cases, including rural broadband customized local enterprise solutions, into yet another band designed for the sole use and benefit of three or four national mobile carriers. 

The record in this proceeding overwhelmingly demonstrates that the Commission should ultimately reject the proposed changes to the CBRS priority licensing framework. Roughly 9 out of every 10 commenters oppose the changes, particularly with respect to licensing areas and non-competitive renewals. While opposition to license areas as large as Partial Economic Areas (PEAs), 10-year terms and non-competitive renewal without buildout requirements spans many industry sectors – from rural and small wireless ISPs, to enterprise wireless, content providers and consumer advocates – support for CTIA‘s proposed changes to PALs is, not surprisingly, limited to the largest mobile carriers and a few of their largest suppliers (e.g., Qualcomm, Ericsson, Nokia), and the trade associations they dominate (e.g., Telecom Industry Association 5G Americas). The other stakeholders across the wireless ecosystem recognize the effort to rewrite the PAL rules for what they are: A proposed spectrum industrial policy fashioned to benefit a single business model at the expense of the economy and the public interest more broadly.

The CBRS concept of making spectrum available on a ―localized and ―targeted basis is user- and industry-neutral. As the CBRS Order stated, the policy goal most consistent with Section 309(j) is to make PALs available and affordable to the largest possible number of users, including WISPs providing rural broadband, private ―neutral host LTE networks, office complexes, factories customizing machine-to-machine networks, utilities, airports, shopping malls, and sporting arenas. Unfortunately, a Commission decision to change the PAL rules by adopting far larger licensing areas (PEAs or counties), 10-year terms and non-competitive renewal would inevitably preclude all of these users, effectively reserving the PALs for three or four large, incumbent mobile carriers that are unlikely to build out a ubiquitous small cell network beyond the high-traffic areas in the top 100 MSAs.

In particular, there is overwhelming opposition in the record from consumer advocates and a broad range of technology, cable, industrial, enterprise, rural broadband and other companies to the Commission‘s proposal to change the size of PALs from census tracts to PEAs. OTI and PK agree with the vast majority of commenters who argue that PALs as large as PEAs, or even counties, would preclude a wide range of productive use cases, depress investment, and harm rural broadband providers in particular. Maintaining census tract areas will maximize deployment opportunities for providers of more localized quality of service networks in spectrum protected from interference. The record shows that hundreds of small, rural ISPs will ramp up investment and deployment in unserved and underserved areas, but only if they have sufficient spectrum. In contrast, increasing the license areas to PEAs will favor the largest carriers at the expense of the competitive and innovative providers and services that the inherently small cell CBRS band was intended to support. 

The big mobile carriers also fail to put forward any credible cost-benefit analysis that could justify reversing course on the established rules for PAL licensing. The cellular industy‘s argument that PEA-sized licenses would spur more investment – and by a diversity of providers – is highly unlikely, as the record shows. PALs as large as counties or PEAs might increase investment by one or more national mobile carrier – and perhaps even from big cable companies relying on carriers as MVNOs – but it would deter investment from the vast majority of small providers and other potential users. 

There is substantial agreement in the record that the current PAL rules based on census tracts and limited-term licenses will facilitate a more liquid and efficient secondary markets. A wide variety of non-national carriers investing in the CBRS band agree that it is highly unlikely that either partitioning or leasing of spectrum would significantly address the preclusive impact of large PALs the size of either PEAs or counties in a fashion that meets the needs of industrial, enterprise or rural providers.

If the Commission does choose to enlarge the geographic areas and lengthen the terms for PALs, while also making them non-competitive for renewal, the agency must impose strict and geographic performance requirements for license holders. Increasing the size of PALs to PEAs would require the Commission to implement strict build-out requirements, an unnecessary regulatory intervention since PAL holders under the current rules are already able to aggregate up from census tracts.

If the Commission incorporates any of the proposed changes to the PAL license terms, the agency should also propose strict geographic build-out requirements based on areas no smaller than census tracts. The major carriers claim that large PAL areas are necessary to avoid the risk of a ―coverage gap with respect to a wide-area deployments. The Commission should therefore require PAL holders to deploy in every census tract and return any census tract not served after the initial license term.

Finally, the record supports public disclosure of anonymized CBSD registration data as necessary to optimize productive use of the CBRS band. The Commission‘s existing rules, which protect confidentiality while requiring the licensing database administrator (SAS operators) to make information about the radio environment available to stakeholders, strikes the ―right balance" between licensees‘ desire for confidentiality as well as the GAA users‘ and the public‘s needs to understand how the airwaves are being used. Under current procedures, GAA operators can use anonymized CBRS deployment data to determine which channels are available, in order to plan their networks. The current CBRS rules already protect sensitive information, and the successful operation of the 3.5 GHz framework hinges on the public availability of some information.