New Mobile Broadband Spectrum Rules Adopted for H Block

By Nickolas Milonas and Marc Martin

The Federal Communications Commission recently adopted a Report and Order setting the rules to auction and license the H Block—ten megahertz of paired spectrum at 1915-1920 MHz and 1995-2000 MHz.  In the Middle Class Tax Relief and Job Creation Act of 2012 (the Spectrum Act), Congress directed the FCC to make more spectrum available for commercial use.  As part of that mandate, the FCC was directed to allocate and license the H Block by February 2015.  The H Block auction is expected to take place later this year or in early 2014, in advance of the 2015 deadline. 

The Report and Order largely adopted the FCC’s proposals from the H Block NPRM, which found that designating the upper and lower H Block bands for Personal Communications Services (PCS) mobile operations would not result in harmful interference to the adjacent PCS band licensees.  The Report and Order also adopted a “straight forward” band plan in which the upper H Block will be used for downlink operations and the lower H Block will be used for uplink operations.

The H Block is unique because it is the only spectrum identified in the Spectrum Act that is paired and already cleared of incumbent licensees (thanks to the prior relocation of Broadcast Auxiliary Service licensees by Sprint).  The Spectrum Act requires the proceeds from these spectrum auctions be used to fund FirstNet, the first high-speed nationwide network for emergency responders and public safety.  The H Block auction revenue could be a significant “down payment” towards the roll out of FirstNet.

Wireless Data Roaming Rules Upheld by D.C. Circuit

By J. Bradford Currier, Marc Martin, and Marty Stern

Mobile wireless data providers must offer roaming agreements to competing carriers on “commercially reasonable” terms following the D.C. Circuit Court’s decision to uphold rules first adopted by the Federal Communications Commission in 2011. The FCC’s data roaming requirements were designed to supplement existing roaming obligations on mobile carriers that only applied to voice services by facilitating access to data services when customers travel outside of their providers’ networks. As we reported previously, the data roaming rules were adopted by a closely-divided FCC and were subsequently challenged by Cellco Partnership, more commonly known as Verizon Wireless.

Verizon Wireless challenged the data roaming obligations on three grounds, arguing that: (1) the FCC lacked statutory authority to impose “common carrier” type rules on mobile data providers; (2) new rules were unnecessary because mobile data providers were already entering into voluntary roaming agreements with competing carriers; and (3) roaming obligations would reduce incentives to expand wireless infrastructure if providers must share their networks with competitors.  Verizon Wireless alleged that the roaming requirements would unfairly benefit smaller carriers with limited networks at the expense of larger providers. In response, the FCC stated that the new rules did not impose common carrier type regulations on mobile data providers and the requirements were necessary in order to prevent larger carriers from excluding smaller providers from their networks. 

The D.C. Circuit began by noting that the FCC may not impose common carrier type obligations on providers of “information services,” including mobile data providers. However, the court found that the data roaming rules allow providers to negotiate the terms of their roaming arrangements on an individualized basis and do not require providers to serve other carriers indiscriminately on standardized terms. While the court recognized that the data roaming requirements “plainly bear[] some marks of common carriage,” the court deferred to the FCC’s determination that the new rules did not amount to common carriage regulation because providers can negotiate flexible terms and conditions. The court further concluded that the data roaming rules did not constitute an unconstitutional taking of Verizon Wireless’s data network or represent arbitrary and capricious rulemaking. Although supporters of the roaming rules also suggested that the court’s decision supports the FCC’s net neutrality rules currently subject to a separate appeal, the court in the data roaming case found that the FCC has explicit jurisdiction over wireless carriers under its broad authority over radio communications under Title III of the Communications Act.