PSSA asks FCC to reconsider 4.9 GHz order, protect public-safety use of spectrum

The Public Safety Spectrum Alliance (PSSA) today filed petitions asking the FCC to reconsider an order passed this fall that would let states lease 4.9 GHz airwaves—dedicated to public safety for more than 15 years—potentially setting the stage for the spectrum to be in limbo for some time, according to Beltway sources.

PSSA made the filings today, which was the final day before the FCC’s 4.9 GHz order is due take effect on Dec. 30. FCC commissioners approved the order by a 3-2 vote along partisan lines on Sept. 30, and the text of the measure was published in the Federal Register on Nov. 30, which resulted in an effective date of Dec. 30.

Under the FCC order, states would have the option to lease the 50 MHz swath of 4.9 GHz spectrum—deemed by the FCC to be underutilized by public safety—to commercial entities. PSSA officials like Jeff Johnson, executive director of the Western Fire Chiefs Association, have opposed the measure.

“Public safety believes that this is not best for our country, not best for public safety, and would like the FCC to genuinely reconsider the decision,” Johnson said during an interview with IWCE’s Urgent Communications.

Johnson signed both the PSSA petition for reconsideration of the 4.9 GHz order and the PSSA request for stay of the 4.9 GHz measure. In the petition for reconsideration, the PSSA asks the FCC to vacate the order.

“[The FCC is requested to] direct the Public Safety and Homeland Security Bureau to convene with Petitioners and other interested parties to construct an improved path forward,” according to the PSSA filing.

The reconsideration petition expresses the hope that such discussions will lead to “rational spectrum-management options to ensure greater utilization of the [4.9 GHz] band, and the implementation of specific technical and operational safeguards to preserve public safety’s continued ability to fully utilize the band without interference and on a prioritized and nationwide basis.”

Under FCC rules, a petition for reconsideration is subject to a 15-day period for opposition comments to be submitted and a subsequent 10-day period for reply comments—filing windows that begin only after the petition for reconsideration is published in the Federal Register.

Given these rules, the FCC would not be able to consider the PSSA petition for reconsideration until after the Jan. 20 presidential inauguration.

This timing is particularly relevant in this case, because the FCC approved the 4.9 GHz order by a 3-2 vote in September along party lines, with the Republican majority prevailing over opposition from Democrat commissioners. However, after the scheduled Jan. 20 inauguration of President-elect Joe Biden, Democrats would have an opportunity to hold the FCC majority, although Beltway sources have noted that it could take some time to get an FCC nominee confirmed by the Senate.

Unlike the reconsideration petition, the PSSA request for stay that would halt the order becoming effective does not have set deadlines or a comment period, according to legal sources. The FCC does not have any obligation to take action on either PSSA request, but the petition for reconsideration cannot be acted upon until after the presidential inauguration, according to the sources.

Absent an unexpected vote to support the PSSA stay request, most of the 4.9 GHz order will become effective tomorrow, Dec. 30. However, states realistically would not be able pursue any lease agreements associated with the spectrum, because one critical section of the 4.9 GHz order is still subject to review by the Office of Management and Budget (OMB), and the FCC still needs to adopt rules regarding the proposed spectrum leases.

“Right now, everything about 4.9 [GHz spectrum] appears to be in limbo, and it could be awhile before it is all sorted out,” according to an industry source who requested anonymity.

PSSA called for the FCC to reconsider and/or stay the 4.9 GHz order, because the item “suffers from several material defects,” including inadequate notice about the measure and a lack of support in the record, according to the petition for reconsideration.

“Until its publishing of its draft Order immediately prior to its open meeting, at no time did the commission ever propose or even imply that it was considering a rule change that would (i) take the 4.9 GHz Band away from exclusive public safety use and cede control over the Band to each eligible state to manage as it sees fit, or (ii) exclude states that divert 911 fees for other state purposes from eligibility for a license, omissions which precluded adequate and reasonable opportunity for public comment on the proposed rule changes,” the PSSA filing states.

“There is no demonstrable support in the record by any state—or any commenter, for that matter—for the commission’s decision to place this spectrum-management burden on each state, which typically have neither the resources, experience, nor expertise to effectively manage this nationwide federal spectrum resource in a way that ensures seamless, secure, interoperable, intrastate, interstate, and cross-border usage. Indeed, not a single state filed in support of, or even implied the commission should take, the action it did in the order.”

In addition, the FCC did not address previously submitted proposals to changes the 4.9 GHz rules in a manner that were designed to encourage greater utilization of the spectrum, and the commission offered no explanation how the 4.9 GHz order would “appropriately increase use of the band, promote the safety of life and property, and serve the public interest,” according to the PSSA filing.

“Instead of fixing the flaws in its rules that limited public-safety utilization of the band, the commission seemingly used such under-utilization as an excuse to repurpose the band for commercial entities,” the PSSA petition for reconsideration states.

“The commission’s decision to eliminate long-standing dedicated use of the band for public safety and cede its nationwide spectrum-management authority to each of the states, which do not have spectrum-management experience or allocated resources necessary to manage the band, will most certainly result in a patchwork of different rules, different users, and different use cases, as well as put the integrity of public-safety communications at risk.”

PSSA officials previously have expressed interest in the having the FCC or Congress authorize the FirstNet Authority—the entity charged with building and maintaining the nationwide public-safety broadband network (NPSBN)—to study and best determine how the 4.9 GHz spectrum should be utilized to provide the most benefit to public safety.

While the PSSA filing references the FirstNet governance model and broadband network, it does not advocate for its previously stated position. However, the petition for reconsideration notes that the 4.9 GHz spectrum could prove to be very helpful as public safety seeks to adopt 5G technologies.

“While Band 14 [the 700 MHz spectrum licensed to the FirstNet Authority] and the NPSBN have proven to be a highly effective and critical asset for public safety LTE operations, it suffers from one critical deficiency—it is not particularly effective for operation of 5G networks,” according to the PSSA petition. “As low-bandwidth spectrum, it does not support the necessary propagation characteristics to enable the speed, throughput, and coverage of existing and planned 5G networks.

“Alternatively, as spectrum falling within the mid-band, 4.9 GHz is significantly better suited to offer 5G capabilities. By removing the 4.9 GHz Band from dedicated, or even prioritized, public safety use, the commission has effectively foreclosed the opportunity for public safety to utilize this spectrum for mission-critical 5G services, eliminating the only 5G-capable spectrum that, until now, had been available for public safety to rely on.

“5G functionality is expected to be the future of public safety cellular communications, supplementing use of 4G LTE services, to enable high speed, low latency applications.”