Archives For Spectrum Scarcity

[TOTM: The following is part of a digital symposium by TOTM guests and authors on the legal and regulatory issues that arose during Ajit Pai’s tenure as chairman of the Federal Communications Commission. The entire series of posts is available here.]

Chairman Ajit Pai prioritized making new spectrum available for 5G. To his credit, he succeeded. Over the course of four years, Chairman Pai made available more high-band and mid-band spectrum, for licensed use and unlicensed use, than any other Federal Communications Commission chairman. He did so in the face of unprecedented opposition from other federal agencies, navigating the chaotic currents of the Trump administration with political acumen and courage. The Pai FCC will go down in history as the 5G FCC, and as the chairman who protected the primacy of FCC control over commercial spectrum policy.

At the same time, the Pai FCC will also go down in history as the most conventional FCC on spectrum policy in the modern era. Chairman Pai undertook no sweeping review of spectrum policy in the manner of former Chairman Michael Powell and no introduction of new and radically different spectrum technologies such as the introduction of unlicensed spectrum and spread spectrum in the 1980s, or the introduction of auctions in the 1990s. To the contrary, Chairman Pai actually rolled back the experimental short-term license structure adopted in the 3.5 GHz Citizens Broadband Radio Service (CBRS) band and replaced it with the conventional long-term with renewal expectation license. He missed a once-in-a-lifetime opportunity to dramatically expand the availability of unlicensed use of the TV white spaces (TVWS) via repacking after the television incentive auction. In reworking the rules for the 2.5 GHz band, although Pai laudably embraced the recommendation to create an application window for rural tribal lands, he rejected the proposal to allow nonprofits a chance to use the band for broadband in favor of conventional auction policy.

Ajit Pai’s Spectrum Policy Gave the US a Strong Position for 5G and Wi-Fi 6

To fully appreciate Chairman Pai’s accomplishments, we must first fully appreciate the urgency of opening new spectrum, and the challenges Pai faced from within the Trump administration itself. While providers can (and should) repurpose spectrum from older technologies to newer technologies, successful widespread deployment can only take place when sufficient amounts of new spectrum become available. This “green field” spectrum allows providers to build out new technologies with the most up-to-date equipment without disrupting existing subscriber services. The protocols developed for mobile 5G services work best with “mid-band” spectrum (generally considered to be frequencies between 2 GHz and 6 GHz). At the time Pai became chairman, the FCC did not have any mid-band spectrum identified for auction.

In addition, spectrum available for unlicensed use has become increasingly congested as more and more services depend on Wi-Fi and other unlicensed applications. Indeed, we have become so dependent on Wi-Fi for home broadband and networking that people routinely talk about buying “Wi-Fi” from commercial broadband providers rather than buying “internet access.” The United States further suffered a serious disadvantage moving forward to next generation Wi-Fi, Wi-Fi 6, because the U.S. lacked a contiguous block of spectrum large enough to take advantage of Wi-Fi 6’s gigabit capabilities. Without gigabit Wi-Fi, Americans will increasingly be unable to use the applications that gigabit broadband to the home makes possible.

But virtually all spectrum—particularly mid-band spectrum—have significant incumbents. These incumbents include federal users, particularly the U.S. Department of Defense. Finding new spectrum optimal for 5G required reclaiming spectrum from these incumbents. Unlicensed services do not require relocating incumbent users but creating such “underlay” unlicensed spectrum access requires rules to prevent unlicensed operations from causing harmful interference to licensed services. Needless to say, incumbent services fiercely resist any change in spectrum-allocation rules, claiming that reducing their spectrum allocation or permitting unlicensed services will compromise valuable existing services, while simultaneously causing harmful interference.

The need to reallocate unprecedented amounts of spectrum to ensure successful 5G and Wi-Fi 6 deployment in the United States created an unholy alliance of powerful incumbents, commercial and federal, dedicated to blocking FCC action. Federal agencies—in violation of established federal spectrum policy—publicly challenged the FCC’s spectrum-allocation decisions. Powerful industry incumbents—such as the auto industry, the power industry, and defense contractors—aggressively lobbied Congress to reverse the FCC’s spectrum action by legislation. The National Telecommunications and Information Agency (NTIA), the federal agency tasked with formulating federal spectrum policy, was missing in action as it rotated among different acting agency heads. As the chair and ranking member of the House Commerce Committee noted, this unprecedented and very public opposition by federal agencies to FCC spectrum policy threatened U.S. wireless interests both domestically and internationally.

Navigating this hostile terrain required Pai to exercise both political acumen and political will. Pai accomplished his goal of reallocating 600 MHz of spectrum for auction, opening over 1200 MHz of contiguous spectrum for unlicensed use, and authorized the new entrant Ligado Networks over the objections of the DOD. He did so by a combination of persuading President Donald Trump of the importance of maintaining U.S. leadership in 5G, and insisting on impeccable analysis by the FCC’s engineers to provide support for the reallocation and underlay decisions. On the most significant votes, Pai secured support (or partial support) from the Democrats. Perhaps most importantly, Pai successfully defended the institutional role of the FCC as the ultimate decisionmaker on commercial spectrum use, not subject to a “heckler’s veto” by other federal agencies.

Missed Innovation, ‘Command and Control Lite

While acknowledging Pai’s accomplishments, a fair consideration of Pai’s legacy must also consider his shortcomings. As chairman, Pai proved the most conservative FCC chair on spectrum policy since the 1980s. The Reagan FCC produced unlicensed and spread spectrum rules. The Clinton FCC created the spectrum auction regime. The Bush FCC included a spectrum task force and produced the concept of database management for unlicensed services, creating the TVWS and laying the groundwork for CBRS in the 3.5 GHz band. The Obama FCC recommended and created the world’s first incentive auction.

The Trump FCC does more than lack comparable accomplishments; it actively rolled back previous innovations. Within the first year of his chairmanship, Pai began a rulemaking designed to roll back the innovative priority access licensing (PALs). Under the rules adopted under the previous chairman, PALs provided exclusive use on a census block basis for three years with no expectation of renewal. Pai delayed the rollout of CBRS for two years to replace this approach with a standard license structure of 10 years with an expectation of renewal, explicitly to facilitate traditional carrier investment in traditional networks. Pai followed the same path when restructuring the 2.5 GHz band. While laudably creating a window for Native Americans to apply for 2.5 GHz licenses on rural tribal lands, Pai rejected proposals from nonprofits to adopt a window for non-commercial providers to offer broadband. Instead, he simply eliminated the educational requirement and adopted a standard auction for distribution of remaining licenses.

Similarly, in the unlicensed space, Pai consistently declined to promote innovation. In the repacking following the broadcast incentive auction, Pai rejected the proposal of structuring the repacking to ensure usable TVWS in every market. Instead, under Pai, the FCC managed the repacking so as to minimize the burden on incumbent primary and secondary licensees. As a result, major markets such as Los Angeles have zero channels available for unlicensed TVWS operation. This effectively relegates the service to a niche rural service, augmenting existing rural wireless ISPs.

The result is a modified form of “command and control,” the now-discredited system where the FCC would allocate licenses to provide specific services such as “FM radio” or “mobile pager service.” While preserving license flexibility in name, the licensing rules are explicitly structured to promote certain types of investment and business cases. The result is to encourage the same types of licensees to offer improved and more powerful versions of the same types of services, while discouraging more radical innovations.

Conclusion

Chairman Pai can rightly take pride in his overall 5G legacy. He preserved the institutional role of the FCC as the agency responsible for expanding our nation’s access to wireless services against sustained attack by federal agencies determined to protect their own spectrum interests. He provided enough green field spectrum for both licensed services and unlicensed services to permit the successful deployment of 5G and Wi-Fi 6. At the same time, however, he failed to encourage more radical spectrum policies that have made the United States the birthplace of such technologies as mobile broadband and Wi-Fi. We have won the “race” to next generation wireless, but the players and services are likely to stay the same.

[TOTM: The following is part of a digital symposium by TOTM guests and authors on the legal and regulatory issues that arose during Ajit Pai’s tenure as chairman of the Federal Communications Commission. The entire series of posts is available here.]

Ajit Pai will step down from his position as chairman of the Federal Communications Commission (FCC) effective Jan. 20. Beginning Jan. 15, Truth on the Market will host a symposium exploring Pai’s tenure, with contributions from a range of scholars and practitioners.

As we ponder the changes to FCC policy that may arise with the next administration, it’s also a timely opportunity to reflect on the chairman’s leadership at the agency and his influence on telecommunications policy more broadly. Indeed, the FCC has faced numerous challenges and opportunities over the past four years, with implications for a wide range of federal policy and law. Our symposium will offer insights into numerous legal, economic, and policy matters of ongoing importance.

Under Pai’s leadership, the FCC took on key telecommunications issues involving spectrum policy, net neutrality, 5G, broadband deployment, the digital divide, and media ownership and modernization. Broader issues faced by the commission include agency process reform, including a greater reliance on economic analysis; administrative law; federal preemption of state laws; national security; competition; consumer protection; and innovation, including the encouragement of burgeoning space industries.

This symposium asks contributors for their thoughts on these and related issues. We will explore a rich legacy, with many important improvements that will guide the FCC for some time to come.

Truth on the Market thanks all of these excellent authors for agreeing to participate in this interesting and timely symposium.

Look for the first posts starting Jan. 15.

At today’s Open Commission Meeting, the FCC is set to consider two apparently forthcoming Notices of Proposed Rulemaking that will shape the mobile broadband sector for years to come.  It’s not hyperbole to say that the FCC’s approach to the two issues at hand — the design of spectrum auctions and the definition of the FCC’s spectrum screen — can make or break wireless broadband in this country.  The FCC stands at a crossroads with respect to its role in this future, and it’s not clear that it will choose wisely.

Chairman Genachowski has recently jumped on the “psychology of abundance” bandwagon, suggesting that the firms that provide broadband service must (be forced by the FCC to) act as if spectrum and bandwidth were abundant (they aren’t), and not to engage in activities that are sensible responses to broadband scarcity.  According to Genachowski, “Anything that depresses broadband usage is something that we need to be really concerned about. . . . We should all be concerned with anything that is incompatible with the psychology of abundance.”  This is the idea — popularized by non-economists and ideologues like Susan Crawford — that we should require networks to act as if we have “abundant” capacity, and enact regulations and restraints that prevent network operators from responding to actual scarcity with business structures, rational pricing or usage rules that could in any way deviate from this imaginary Nirvana.

This is rhetorical bunk.  The culprit here, if there is one, isn’t the firms that plow billions into expanding scarce capacity to meet abundant demand and struggle to manage their networks to maximize capacity within these constraints (dubbed “investment heroes” by the more reasonable lefties at the Progressive Policy Institute).  Firms act like there is scarcity because there is — and the FCC is largely to blame.  What we should be concerned about is not the psychology of abundance, but rather the sources of actual scarcity.

The FCC faces a stark choice—starting with tomorrow’s meeting.  The Commission can choose to continue to be the agency that micromanages scarcity as an activist intervenor in the market — screening-out some market participants as “too big,” and scrutinizing every scarcity-induced merger, deal, spectrum transfer, usage cap, pricing decision and content restriction for how much it deviates from a fanciful ideal.  Or it can position itself as the creator of true abundance and simply open the spectrum spigot that it has negligently blocked for years, delivering more bandwidth into the hands of everyone who wants it.

If the FCC chooses the latter course — if it designs effective auctions that attract sellers, permitting participation by all willing buyers — everyone benefits.  Firms won’t act like there is scarcity if there is no scarcity.  Investment in networks and the technology that maximizes their capacity will continue as long as those investments are secure and firms are allowed to realize a return — not lambasted every time they try to do so.

If, instead, the Commission remains in thrall to self-proclaimed consumer advocates (in truth, regulatory activists) who believe against all evidence that they can and should design industry’s structure (“big is bad!”) and second-guess every business decision (“psychology of abundance!”), everyone loses (except the activists, I suppose).  Firms won’t stop acting like there’s scarcity until there is no scarcity.  And investment will take a backseat to unpopular network management decisions that represent the only sensible responses to uncertain, over-regulated market conditions.