FCC approves stay order to halt leasing rules for 4.9 GHz spectrum

FCC commissioners this week released an order that grants a request from the Public Safety Spectrum Alliance (PSSA), indefinitely suspending the 4.9 GHz rules passed last year that would have let states lease the longtime public-safety spectrum to commercial entities.

FCC Chairwoman Jessica Rosenworcel, Geoffrey Starks and Nathan Simington delivered the three supporting votes for the stay order, which will stay in place for an indefinite period of time while the commission deliberate on petitions for reconsideration for the 4.9 GHz order that was approved last fall. At that time, the Republican FCC led by Chairman Ajit Pai passed the measure in a 3-2 party-line vote.

In its stay order, the FCC emphasized its desire to provide some sort of regulatory certainty in the 4.9 GHz band while it considers the petitions for reconsideration filed by the Association of Public-Safety Communications Officials (APCO) and the National Public Safety Telecommunications Council (NPSTC).

“We are … concerned that implementing this new framework while we review the petitions for reconsideration would adversely impact both short-term public safety access to this spectrum and our future efforts to improve the band’s rules,” according to the FCC order. “Instead, we believe the most effective way to further the public interest is by ensuring that we provide certainty before any leasing agreements are entered into or systems are deployed.”

In the order, the FCC detailed some of the concerns it had, if the 4.9 GHz rules were allowed to remain in place and rules were established to enable the leasing of the 50 MHz band to commercial entities.

“Allowing use of the band to become fragmented on a state-by-state basis could create incentives for individual states to make use of the spectrum for revenue generation in ways that do not serve the interests of public safety, decreasing the likelihood of interoperable communications for public-safety users, which we recognize is an important Congressional objective,” according to the FCC order.

“Furthermore, this fragmentation may undermine the ability of operators to upgrade their networks to improve public safety offerings and make more efficient use of spectrum resources. We also find that allowing State Lessors to begin the process of leasing the 4.9 GHz band to non-public safety entities and subsequently changing the rules on reconsideration would cause confusion and could irreparably complicate the Commission’s ongoing efforts to craft rules for this band that maximize its use in a way that will best serve the public interest.”

Commissioner Brendan Carr, who voted to support the 4.9 GHz in the fall, cast the lone dissenting vote.

In a separate statement, Carr said it was “clear that the status quo was not working,” describing the 4.9 GHz band as “woefully underutilized” under the previous rules. Carr also noted that a bill had been proposed in the state of Louisiana to take advantage of the rules that would allow spectrum leases of the airwaves to commercial entities.

“I am disappointed that the Commission’s decision to stay our 4.9 GHz band order will return this spectrum to the broken framework of the past,” Carr said in the prepared statement. “This is the spectrum equivalent of taking points off the board.

“While I am dissenting from today’s decision, I remain hopeful that we can find a way to quickly put a beneficial framework back in place. And I am open to working with my colleagues, the public-safety community, and all other stakeholders on doing exactly that.”

Last fall, the FCC voted 3-2 along party lines—Republicans held the majority at the time—to let states lease 4.9 GHz spectrum to commercial entities, although the airwaves had been designated for public-safety use for almost two decades.

Several public-safety organizations opposed the move at the time of the vote. Public Safety Spectrum Alliance (PSSA) in late December filed petitions asking the FCC to reconsider the 4.9 GHz order. That petition did not generate any new responses opposing the reconsideration in the FCC’s online filing system.

Given the party-line vote in the fall, many Beltway sources have anticipated that 4.9 GHz order would be reversed or altered significantly by an eventual Democratic majority at the FCC. However, that Democratic majority does not exist yet, as the FCC remains 2-2 on a partisan basis, but Simington—the new Republican on the commission since the previous 4.9 GHz vote—sided with Democratic commissioners in voting for the stay order. President Joe Biden has not nominated anyone to fill the fifth seat on the commission.

APCO Executive Director and CEO Derek Poarch welcomed the FCC’s vote to approve the stay order. APCO and NPSTC filed the petitions for reconsideration that are expected to be the subject of a 4.9 GHz proceeding during the next several months.

“The Commission’s action comes as a relief,” Poarch said in a prepared statement. “APCO thanks Acting Chairwoman Rosenworcel, Commissioner Starks, and Commissioner Simington for listening to public safety and taking this important step to chart a better course for the spectrum.”

Public-safety representatives of the PSSA agreed. Kevin McGinnis, communications technology adviser to the National Association of State EMS Officials (NASEMO) and former FirstNet Authority board member, said the EMS community is realizing the value of broadband, from telehealth capabilities to services like portable ultrasound.

“Preserving the 4.9 GHz band as part of this public-safety toolkit is vital with its promise as a 5G enhancement,” McGinnis said in a prepared statement provided to IWCE’s Urgent Communications. “Therefore, I am extremely gratified by the FCC’s action in considering the Public Safety Spectrum Alliance’s (PSSA’s) request to stay the FCC’s 4.9 GHz Report and Order from October of 2020.

“That spectrum, which was assigned to public safety in 2002, is critical for the future of communication for all of our nation’s first responders.  This mid-band spectrum is of particular value to the EMS community as emergency-medicine technology evolves to further capabilities to save lives.”

Charles Dowd—a former FirstNet Authority board member and a retired assistant chief for the New York Police Department (NYPD)—echoed this sentiment.

“The 4.9 GHz spectrum was assigned to public on the heels of the 9/11 attacks. It’s always been important to us and will continue to be important to us, both now and in the future,” Dowd said during an interview with IWCE’s Urgent Communications. “We are extremely grateful to the FCC commissioners for granting this stay, and we are excited to work through the issue with them to ensure that that spectrum stays in the hands of public safety.”