November 16, 2017: A Day That Will Live in Infamy

11/16/17 FCC Commissioner Statements

Source: real-time transcript of the live-stream of the 11/16/17 FCC Open Meeting

Commissioner Mignon Clyburn on Spectrum Bands Above 24 GHz:

Unfortunately, my excitement for this proceeding is now subdued because by adopting this order, the commission’s majority turns its back on promoting competition and innovative spectrum policy. Last year the agency adopted a pre-auction limit so that no entity could acquire more than roughly 1/3 of the spectrum in the 24, 37, 28, and 39 gigahertz band. There was substantial support from the commercial wireless industry for limits and those bands including two of the top four nationwide wireless carriers, smaller carriers and consumer advocates.

In the first further notice the commission also proposed to impose a similar limit on the amount of spectrum any one entity could acquire in the 24 and 47 gigahertz bands. Many commenters support this proposal as well.

In an attempt to understand the majority’s decision to reverse course on these pre-auction aggregate limits allow me to start with the current state of the industry and the communications act mandate.

The commercial wireless industry is highly concentrated. For antitrust purposes, the U.S. Department of Justice uses a well-known Hirschman index or HHI and the DOJ classifies markets with an HHI index of less than 1,500 as unconcentrated and markets with an HHI of over 2500 as highly concentrated. The HHI index for commercial wireless markets has been increasing every year. It is now over 3,100.

Spectrum is a critical input to competition in this market. For this reason section 309(j) of the 1996 Telecommunications Act requires the commission to design auctions to prevent the excessive concentration of licenses and disseminate licenses among a variety — a wide variety, of applicants.

This is why I strongly supported the commission’s adoption of spectrum aggregation limits in the incentive auction and in this proceeding. So why does the majority reverse those decisions here?

Given the importance of the spectrum bands to the future of the commercial wireless industry, the large wireless companies have the same incentives to acquire dominant holdings here as they did with low band spectrum. Removing spectrum aggregation limits will likely lead to even greater concentration in the market, therefore,** I am unable to support this policy reversal**.

While the majority would have you believe that the record clearly supports its decision to not permit user share, a fair and objective review of the record tells a much different story. The established commercial mobile wireless providers would prefer the commission use the same licensing approach that a company traditional cellular deployment exclusive long-term licenses. Even though the spectrum band is not conducive to traditional cellular deployment, the majority once again, demonstrates in this proceeding that they will take whatever steps are necessary to give large established wireless providers what ever they want.
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Commissioner Jessica Rosenworcel on Spectrum Bands Above 24 GHz:

Here are five ideas for 5G.

First, I think leadership in any technology cycle requires more than rulemaking and reconsideration. It requires action. Today we have authorized millimeter waves in the 28, 37 and 39 gigahertz bands as well as now in the 24 and 47 gigahertz bands. We’ve also teed up spectrum for mobile use in the 32, 42 and 50 gigahertz bands. But what we need now is more than a blip of spectrum opportunities. We need something simple. A calendar. Let’s commit to deadlines for the bands we have under consideration and focus every actor in the wireless ecosystem on getting something done. We can start with the 28 gigahertz band. Right now South Korea is working toward an auction of airwaves by October 2018. So here is my big idea. Let’s go first. Let’s hold our auction before our counterparts in Asia and let’s be the first in the world. I hope my colleagues will agree to this course.

Second, while we continue to look high for new spectrum we cannot forget we need to look low. We know commercializing millimeter wave bands will not be easy given the challenging propagation characteristics. Simply putting your hand in front of a transmitter can result in the degradation of service. We can get there, but it’s going to take some work. In the meantime, we need to move expeditiously with our review of mid-band spectrum to bridge the gap to the high frequency bands we discuss here. At the same time, we need to correct course and move fast on the innovative ideas in the original 3.5 gigahertz band proposal, which the FCC mistakenly opened for rulemaking just last month.

Third, it is essential that we move past the traditional binary choice between licensed and unlicensed services. We need more creative spectrum access strategies in the future. We do that here by affirming our continued commitment to unlicensed used in the 64-71 gigahertz band but can do more to clarify opportunities for dynamic use of unlicensed spectrum in the 37 gigahertz band by dismissing the condition seeking a framework built only on exclusive use.

Fourth, to build a bigger wireless future we need to focus as much on the ground is on the sky. Airwaves alone are not enough so no amount of spectrum will lead to better wireless service without good infrastructure. Let’s do this, we need to take a comprehensive look at power siting practices and make them more consistent across the country. 5G requires us to think beyond traditional tower siting. Millimeter wave spectrum puts a premium on small cells and figuring out how to get these micro cells in place and fiber facilities nearby make it really big infrastructure effort. Of course, making our local practices more consistent is hard. We have a proud tradition of local control in this country that makes uniform one shot preemptive legislative policy a rough way to go. Still there are other ways to do this. Right now work is underway on a model code for small cell and 5G deployment and if we produce something good we need to share this model far and wide and we need to look at every aspect of our laws from FCC policy to federal and state grant programs in basic infrastructure and build an incentive for everyone to use it. We need to remember that the carrot is a swifter tool for change than a stick.

Fifth, we need to support the new experimental licensing system the FCC put in place a few months ago. The system provides an early upfront way to innovate and create and provides a safe space to play with power levels explore frequency and develop new services. One of these new experimental licenses is designed for innovation. This is like a virtual wireless sandbox. It allows communities to experiment with new mobile solutions and is tailor-made for new smart city initiatives. It’s ideal for exploring the possibilities of 5g and millimeter wave service and a variety of settings. The FCC needs to fully support and encourage the use of these experimental tools and change them if we need to in order to encourage greater use.

I think these five tasks are essential if the United States wants to lead in the next generation of wireless service. The possibilities are exciting if we heed them. After all, we are on the cusp of cars that drive themselves, streets that are safer, emergency services more effective, health care more personalized and more capability across the board because we are more connected. What we do here today is a small part of making that happen. But for us to truly succeed we need to get going before other countries lead the way.