Demand for spectrum pits FCC against other agencies
Telecommunications companies appear to have endless need for additional bandwidth
The implementation of 5G wireless technology has created a strain on radio frequency spectrum that is putting the industry at odds with administration agencies, with the Federal Communications Commission stuck in the middle.
One analyst compares it to the 1960 black comedy film “The Little Shop of Horrors,” where a ravenous, human-eating plant can’t be sated. Similarly, telecommunications companies appear to have an endless need for additional bandwidth to provide ever-faster mobile data services.
Congress, meanwhile, has increasingly begun to rely on spectrum auctions to pay for other federal programs, using it as one of a handful of pay-fors in last year’s bipartisan infrastructure law.
The result has put the FCC, an independent regulatory agency that administers spectrum for nonfederal use, in conflict with the Department of Transportation, which is aiming to protect spectrum used by airlines and automobile companies.
Those fights will come to the fore this month.
On Jan. 19, Verizon and AT&T plan to launch 5G networks in bandwidth adjacent to that used by aircraft radar altimeters, which are used to navigate aircraft in low visibility. The airline industry, led by industry group Airlines for America, has already successfully sought delay of the deployment twice, first for a month, now for two weeks.
That fight only involves those two companies, not T-Mobile and others that offer 5G services.
The aviation industry argues that deploying the new bandwidth without appropriate mitigations could put airline passengers at risk, and says the two-week delay will give the Federal Aviation Administration time to determine appropriate mitigations.
And on Jan. 25, the FCC is scheduled to go to court with the American Association of State Highway and Transportation Officials and the Intelligent Transportation Society of America over bandwidth used by the auto industry.
The two transportation associations will make oral arguments before the D.C. Circuit Court of Appeals objecting to an FCC plan to carve up the 5.9 GHz band, which has been reserved for vehicle safety since 1999.
The FCC voted in December 2019 to split up the spectrum because it has been largely underused, with no commercial automobile companies selling vehicles deploying the technology designated for that bandwidth.
Analysts say the fights reflect a larger conflict: How to split up spectrum as it becomes increasingly in demand.
“This is the last big thing and because of it we’ve got to find all the spectrum we can to feed it,” said Jim Dunstan, general counsel for TechFreedom, which opposes public policies that it says are overly restrictive of internet-based services. “The easy pickings are gone and now we’re down to the bone, so to speak.”
Dunstan, who devised the “Little Shop of Horrors” analogy, said government agencies that have had control of a portion of spectrum for decades have had little incentive to use those frequencies more efficiently. But now, with telecom companies hungry for spectrum, “the individual agencies are saying, ‘hey, now you’re invading our turf.’”
While details of the two DOT spectrum fights vary, the agency’s fundamental defense has been to argue that it needs the bandwidth for safety purposes. In the case of airlines, the department argues, the industry needs the spectrum to navigate in low visibility.
In the auto case, they call the spectrum “ the safety band,” and say controlling the frequencies will allow smart vehicles of the future to use roadways more efficiently and avoid collisions.
It’s a hard argument to counter, said Harold Feld, a senior vice president for Public Knowledge, which advocates for public expression on the internet.
“It’s very dramatic to be able to say that people will die in car crashes or planes will fall out of the sky,” he said. “That kind of kills the conversation.”
On the airline side, a unified front of airline employee unions, the FAA and the airline industry argued that without appropriate mitigations, using spectrum so close to what airlines use poses a risk of interfering with navigational equipment. The FAA was concerned enough about the potential dangers to issue two airworthiness directives Dec. 7 cautioning that deployment without appropriate mitigations would lead to the delay or cancellation of some flights.
While the two sides seemed to have reached a detente early last week, the FAA on Thursday launched a site warning of the dangers of 5G interference. Its concern: While AT&T and Verizon plan to adopt similar buffer zones to those used by France, the FAA is concerned that lower power levels used in France could mean interference if those same zones are used in the United States.
On the auto side, attorneys for ITS America and the state highway officials will argue later this month that the entire 5.9 GHz band should be reserved for technologies to reduce crashes and save lives, rather than split between auto safety and for telecommunications companies to improve and add to their wireless services.
“The dispute over bandwidth currently playing out underscores the importance of spectrum specifically dedicated to transportation safety,” said Laura Chace, president and CEO of ITS America. “These types of safety tools are critical in our fight to reduce roadway fatalities, and we can’t afford to leave them on the sidelines.”
House Transportation and Infrastructure Chairman Peter A. DeFazio, D-Ore., argued that in both fights the FCC sided with telecommunications over safety.
“There’s a real disconnect here where you have a so-called independent agency who looks at their job as to facilitate the telecom industry,” he said of the FCC. “They have blinders when it comes to anything that impinges upon the wishes, the desires of the telecom industry, particularly the giants.”
He said the FCC has shown a “callous disregard” for the potential safety risks in both fights and called for a “formal consultation process” between agencies when the potential for interference exists.
He criticized the sale of spectrum as a “short-sighted” pay-for. “Giving (telecoms) property rights is pretty irrevocable,” he said.
The battle echoes a larger one: That federal agencies are increasingly battling to maintain spectrum for their own purposes, and fear “harmful interference” that might conflict with the agencies’ missions.
The problem with that, said Ernesto Falcon, senior legislative counsel at the Electronic Frontier Foundation, a nonprofit that advocates for digital freedom, is the definition of what, exactly, is harmful.
“Here’s the thing with wireless: It’s a messy world,” he said. “It’s not like train systems, it’s not like there’s a designated rail where everything works. It’s more chaotic.”
The question, he said, is “what’s tolerable interference that allows everything to work and what’s intolerable.”
“There’s always legitimacy in the argument of ‘will this create some change or interference,’” he said. “The real question they need to be making is, is there an intolerable amount of interference that actually causes harm in terms of the operation of devices.”
DOT is not the only agency fighting to protect its turf: Both the Defense Department, which manages a swath of spectrum for national defense purposes, and the National Oceanic and Atmospheric Administration, which uses satellites to track weather, have engaged in battles over potential interference.
The fights have repeated frequently enough that the Government Accountability Office last July released a report recommending the FCC, which regulates spectrum use by nonfederal entities such as private companies, and the National Telecommunications and Information Administration, which regulates spectrum use by federal government agencies, update and clarify processes to better coordinate on spectrum management.
Their report found that while documents guiding coordination emphasize reaching consensus, “there are no clearly defined and agreed-upon processes for resolving matters when agencies cannot do so.”
Still, Dunstan said the tension between NTIA and the FCC and other agencies will likely continue. And as long as Congress isn’t requiring agencies to use their spectrum more efficiently and Congress keeps auctioning off spectrum to pay for other federal programs, the conflict will keep recurring.
“The 5G monster is going to keep demanding more spectrum,” he said. “And it’s going to continue to cut closer to the bone.”