October 14, 2019

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What’s the Frequency, Tom: The FCC Releases the Spectrum Frontiers Order

In a move that will support the development of 5G networks, the FCC issued an Order last week in the “Spectrum Frontiers” proceeding that should open up large amounts of high-band spectrum for licensed and unlicensed use.  The Commission adopted a new framework for flexible-use licensing in several spectrum bands above 24 GHz, permitting mobile operations in those bands and instituting rules to ensure shared access with incumbent licensees. The Commission also noted that the new licensing framework may serve as a template for rulemaking in additional high-frequency bands in the future, and issued an NPRM seeking feedback on proposals that would open nearly 18 GHz more to mobile use.

The Order opens up spectrum in three licensed bands:

  • In the 27.5-28.35 GHz portion of the Ka-band, currently set aside for local multipoint distribution service (“LMDS,” a fixed broadband wireless service) and fixed satellite service (“FSS”), the Commission authorized use of the spectrum for mobile services and integrated new uses directly into the existing licensing scheme.  Incumbent LMDS licensees may begin mobile operations, and new mobile operators can now apply for county-based geographic-area licenses in this spectrum.  The Commission stated that it envisions mobile operations in this band providing mobile broadband access in dense population centers and along highway corridors.

  • The 39 GHz band has a co-primary allocation for fixed, fixed satellite, and mobile services; however, the Commission has always declined to permit mobile operations in this band pending resolution of potential interference issues. In the Order, the Commission authorized terrestrial mobile operations and adopted service rules to minimize the risk of interference between terrestrial and satellite uses. Licenses granted in the 39 GHz band will provide licensees, including incumbents, with the flexibility to offer fixed and mobile services. (The Commission will issue all new licenses in this spectrum, granting existing and new 39 GHz licensees both fixed and mobile rights.) The rules provide for operators of satellite earth stations that face the potential for harmful interference to apply for a “protection zone” free from terrestrial operations in the 39 GHz band. They also provide for reconfiguration of currently outstanding licenses to create more rational, contiguous bands of available spectrum in anticipation of a future auction.

  • The Commission also opened up the 37 GHz band to terrestrial mobile operations, barring a few federal uses that remain protected. With fewer existing uses in this band, and its proximity to the 39 GHz band, it offers a “greenfield” opportunity for the Commission to create a large block of contiguous spectrum open to mobile wireless broadband use.  A portion of the newly-opened spectrum in this band will be available on a co-equal basis to federal and non-federal uses, and will be monitored by the Commission as a “proving ground” for federal and non-federal sharing in high-frequency millimeter-wave bands. The remainder of the band will be licensed on a geographic-area basis.

Licensees will be subject to a spectrum aggregation limit of 1250 MHz, taking into account holdings in all three bands.  Incumbent licensees’ current holdings in those bands will count toward their total limit.  However, there is not a separate spectrum limit for each individual band.

Mobile use in these three bands is anticipated to facilitate the development of 5G networks – wireless broadband networks that will use high-frequency spectrum to offer faster data speeds, lower latency, and service to more devices simultaneously. Numerous other mobile broadband-related uses of high-band spectrum are in the research and testing phase as well – including self-driving vehicles, telemedicine and remote patient care tools, smart devices (the so-called “Internet of Things”), and virtual reality.

The July 14 Order also made the 64-71 GHz band available for use by unlicensed RF devices under the FCC’s Part 15 rules. This band will serve as a place to test and deploy wireless devices, contributing to the development of new applications for wireless broadband and the larger unlicensed ecosystem.

Among the service rules put in place by this Order is a provision requiring the new licensees to submit statements of their cybersecurity plans at least 6 months before starting operations in the spectrum.  Those plans must be signed by a senior executive with knowledge of the licensee’s security plans and practices, and must indicate how the licensee intends to protect its network against security breaches, assess and mitigate damage in the event of a breach, and incorporate security standards promulgated by Information Sharing and Analysis Organizations (ISAOs) into its own security plans.

The FCC also issued a Notice of Proposed Rulemaking along with this Order, seeking comment on many of the service rules adopted for the newly-opened high-band spectrum, as well as the proposed authorization of flexible use licenses in other bands including 24.25-24.45 GHz and 24.75-25.25 GHz; 31.8-33.4 GHz; 42-42.5 GHz; 47.2-50.2 GHz; 50.4-52.6 GHz; 71-76 GHz; and 81-86 GHz.

The Spectrum Frontiers Order is unique in that, apart from making available almost 11 GHz of spectrum for wireless use, it also represents a unanimous, 5-0 vote that represented input from multiple stakeholders including industry, the federal government, and public interest groups.  This kind of fruitful collaboration will help to ensure that there is an adequate supply of spectrum to support the next generation of innovative wireless services, applications, and devices.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.


About this Author

Brian D. Weimer, Communications Attorney, Sheppard Mullin, law firm

Mr. Weimer is a corporate partner in the firm's Washington, DC office and leader of the firm's Communications Practice.

Mr. Weimer provides transactional and regulatory advice to clients in the telecommunications industry, with particular emphasis on satellite, wireless, and media companies.  He acts as corporate counsel to telecommunications companies in M&A and financing matters and also advises on Federal Communications Commission (FCC) regulatory issues presented by these transactions.  Mr. Weimer represents FCC licensees on a wide range...

Douglas Svor, corporate, attorney, telecommunications, Sheppard Mullin, law firm

Douglas Svor is an associate in the Corporate Practice Group in the firm's Washington, D.C. office. Mr. Svor focuses his practice on corporate regulatory and transactional matters, with an emphasis on the telecommunications industry.


Ashley Yeager is an associate in the Business Trial Practice Group in the firm's Washington D.C. office.


  • J.D., Vanderbilt University Law School, 2015, Order of the Coif

  • B.S.F.S., Georgetown University, 2011, magna cum laude