Spectrum is the lifeblood of the commercial wireless industry.  Today, spectrum is incredibly scarce as most of the available spectrum is already allocated for assorted uses.  With spectrum in short supply yet in high demand by telecommunications operators, federal policy must focus on identifying bands that can be used more efficiently; this is especially the case as new technologies come to market that increase demand for additional spectrum and technological advancements are made that enable more efficient sharing of spectrum.  

Given the competing interests of the commercial wireless sector (both licensed and unlicensed use) and the government’s own spectrum needs, finding spectrum that can be made available for additional uses can be a difficult task.  While the Trump Administration was able to bring a significant amount of new spectrum online, for several reasons the spectrum pipeline has dried up over the last three-and-a half years:  Congress has yet to re-authorize the Federal Communications Commission’s (FCC) auction authority, the Administration’s National Telecommunications and Information Administration’s 2024 National Spectrum Strategy Implementation Plan turned out to be a big nothing-burger; and the FCC has been preoccupied with pushing politically-motivated policies (e.g., aggressive digital discrimination rules and the reimposition of common carrier regulation of the internet).  With the clock rapidly ticking on President Biden’s term, the opportunities for a spectrum “win” for the Commission appear slim.

There are some real opportunities.  Perhaps the Biden Administration’s last and best chance for a spectrum win is to update the FCC’s rules for the lower 12 GHz band (12.2 – 12.7 GHz) to authorize the use of high-powered two-way fixed broadband service in the band  The lower 12 GHz band is a contiguous 500 MHz band of coveted mid-band spectrum primarily used by DBS satellite providers, along with some fixed satellite providers  so long as they do not cause any harmful interference to the DBS operators.  

With commercial spectrum in short supply, in January 2021 (just prior to the start of the Biden Administration), the FCC began to consider whether it should update its rules for the lower 12 GHz band to allow for the band to also be authorized for much-needed terrestrial use.  While the Commission ultimately determined that the increased power levels required for mobile terrestrial use would cause harmful interference to existing DBS services, the Commission stated that it “remains interested in potential expanded use of the band,” particularly for fixed wireless applications that could be used for services like expanded backhaul capacity to support advanced broadband capability.

Which brings us to the current situation.

With demand for fixed wireless service continuing to grow and advancements being made in technology to mitigate harmful interference, a prime opportunity is pending before the FCC for the lower 12 GHz band to be put to more efficient use.  DirectTV has argued that updating the lower 12 GHz band to allow for this band to be used for high-powered two-way fixed wireless service would cause “harmful interference” to its DBS operations—a claim that is unwarranted, especially since DirecTV hardly uses the 12 GHz band anymore and the licensees seeking higher-power are agreeing to operate any fixed wireless services within the protection levels already on the books.  

What should the FCC do?

As an obvious starting point, the FCC can resolve the harmful interference question.  Fortunately, the FCC’s Office of Engineering and Technology (OET) has the capacity to evaluate the competing engineering studies.  While it is impossible to know at this point exactly what the FCC’s OET will ultimately determine, the fact that we are this far down the road in the lower 12 GHz proceeding could indicate that Commission staff believe that interference concerns in the band can be managed.  Indeed, if the 12 GHz band cannot be shared between terrestrial and satellite uses, it does not bode well for sharing regimes in other bands.  The 12 GHz band has no government operations, no GPS issues, no FAA issues and a limited set of stakeholders.  Assuming interference concerns can be resolved here, updating the rules for the lower 12 GHz band to allow for the band to also be used for high-powered two-way fixed wireless service should be a no-brainer for the FCC, and would create a tremendous amount of economic value for society with very little downside risk.  

The U.S. commercial wireless industry has grown exponentially over the last quarter century.  However, unlike the nascent environment of the nineties where it was relatively straightforward to identify large swaths of underutilized spectrum bands, the era of easy spectrum decisions is over.  In today’s spectrum-constrained environment, the federal government must be both innovative and aggressive with its policies, and should increasingly rely on market forces to put spectrum to its best and highest use.  The Commission has traditionally enjoyed a good bipartisan record in this regard (see, e.g., here and here), and thus it is curious why the current Commission is dragging its feet on 12 GHz. 

Unleashing sharing opportunities in the lower 12 GHz band would be an easy win for FCC Chair Jessica Rosenworcel.  And with January 20, 2025, only five months away, Chair Rosenworcel should take the easy layup and put some spectrum points on the board before the buzzer sounds.  She desperately needs a win on spectrum.

Lawrence J. Spiwak is the President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies (www.phoenix-center.org), a non-profit 501(c)(3) research organization that studies broad public-policy issues related to governance, social and economic conditions, with a particular emphasis on the law and economics of the digital age.