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Commission Document Attachment

DOC-326344A5

STATEMENT OF

COMMISSIONER AJIT PAI

APPROVING IN PART AND CONCURRING IN PART

Re:
Amendment of the Commission’s Rules with Regard to Commercial Operations in the 1695–1710
MHz, 1755–1780 MHz, and 2155–2180 MHz Bands
, Report and Order, GN Docket No. 13-185
After five years without a major spectrum auction, things are starting to turn around. Last month
the Commission completed the auction of the long-fallow H Block, and today we adopt service rules so
that we can auction off the AWS-3 spectrum before the year is over. This is good news.
It’s good news because consumer demand for mobile broadband services has never been greater,
and new commercial spectrum is needed to “fuel the investment that has made the United States the world
leader in wireless innovation.”1
And it’s good news because spectrum auctions can raise billions of dollars for national priorities
identified by Congress in the Spectrum Act. Among those priorities are funding for state and local first
responders, public safety research, deficit reduction, and next-generation 911 deployment—not to
mention the funding of FirstNet.2 We need to raise at least $27.95 billion in net revenues if we are going
to meet all of these challenges.
Even more good news: We’re using the right type of auction to sell off the right spectrum. On
the former point, we are maintaining open eligibility and uncapped participation, consistent with the
Commission’s firmly-rooted standard that sets a high bar to any bidding restrictions.3 In a long line of
Commission cases, we have determined that eligibility restrictions may be imposed “only when open
eligibility would pose a significant likelihood of substantial harm to competition in specific markets and
when an eligibility restriction would be effective in eliminating that harm.”4
On the latter point, we’ve paired the 1755–1780 MHz band with the 2155–2180 MHz band,
which is adjacent to the existing AWS-1 band and already internationally harmonized for commercial use.
Those characteristics should mean faster deployment and more efficient use of spectrum. Together, these

1 Letter from House Energy and Commerce Committee Federal Spectrum Working Group to Lawrence Strickling,
Assistant Secretary of Commerce for Communications at 1 (July 10, 2012), available at http://go.usa.gov/gQ5d.
2 Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156 § 6413(b) (2012)
(Spectrum Act), codified at 47 U.S.C. § 1457(b).
3 See, e.g., Service Rules for Advanced Wireless Services in the 2000–2020 MHz and 2180–2200 MHz Bands, WT
Docket Nos. 12-70, 04-356, ET Docket No. 10-142, Report and Order and Order of Proposed Modification, 27 FCC
Rcd 16102, 16193, para. 241 (2012) (AWS-4 Order); see also Service Rules for the 698–746, 747–762 and 777–792
MHz Bands
, WT Docket No. 06-150, Second Report and Order, 22 FCC Rcd 15289, 15383-84, para. 256 (2007)
(700 MHz Second Report and Order); Amendment of Parts 1, 21, 73, 74 and 101 of the Commission’s Rules to
Facilitate the Provision of Fixed and Mobile Broadband Access, Educational and Other Advanced Services in the
2150–2162 and 2500–2690 MHz Bands
, Report and Order and Further Notice of Proposed Rulemaking, 19 FCC
Rcd 14165, 14227–32, paras. 165–76 (2004); Allocations and Service Rules for the 71–76 GHz, 81–86 GHz and 92–
95 GHz Bands
, Report and Order, 18 FCC Rcd 23318, 23346, para. 69 (2003) (70/80/90 GHz Order) (“[E]ligibility
restriction [may] be imposed only when there is significant likelihood of substantial harm to competition in specific
markets and when the restriction will be effective in eliminating that harm.”).
4 AWS-4 Order, 27 FCC Rcd at 16193, para. 241; see also 700 MHz Second Report and Order, 22 FCC Rcd at
15383–84, para. 256; 70/80/90 GHz Order, 18 FCC Rcd at 23346, para. 70.

choices make it more likely that we will have “robust competition, maximizing revenue through vigorous
auction participation,”5 as called for by the leaders of the bipartisan Congressional Spectrum Caucus.
But there are a couple of catches: We are not clearing federal users out of the AWS-3 spectrum,
and we are giving the government greater access to 85 MHz of prime, commercial spectrum at 2025–
2110 MHz. We do this despite that fact that the federal government is already the sole or “dominant”
user of more than half the spectrum ideally suited for mobile broadband. That’s almost 1,300 MHz of
spectrum where, as the President’s Council of Advisors on Science and Technology (PCAST) put it,
government exclusivity or dominance “effectively precludes substantial commercial use.”6
This is bad news for the American public. The best way to maximize the value of spectrum in
these types of bands, both at auction and for consumers, is to make it available for exclusive commercial
use. That’s what we did in the early 2000s when the FCC and the National Telecommunications and
Information Administration (NTIA) cleared federal users out of the 1710–1755 MHz band and conducted
the tremendously successful AWS-1 auction. Clearing that spectrum cost less than originally assumed
even without giving the government new spectrum to use. So consumers got more spectrum, and the
Treasury got more funds.
Since then, Congress has placed even greater emphasis on clearing. In a subsection titled
“Relocation Prioritized Over Sharing,” the Spectrum Act directs the NTIA to “choose options involving
shared use only when it determines, in consultation with the Director of the Office of Management and
Budget [OMB], that relocation is not feasible because of technical or cost constraints.”7 And if NTIA
makes that determination, it must “notify [Congress] of the determination, including the specific technical
or cost constraints on which the determination is based.”8 Consistent with these statutory requirements,
the AWS-3 NPRM proposed to allocate the 1695–1710 and 1755–1780 MHz bands for shared use only “if
clearing is not feasible.”9
The NTIA has not carried out these statutory duties—at least not yet. Although the Commission
commenced the notification-and-auction process of the Commercial Spectrum Enhancement Act more
than one year ago,10 NTIA has not yet notified Congress of its determination—assuming that one has been
made in consultation with OMB.

5 See Letter from Hon. Brett Guthrie and Hon. Doris Matsui to Hon. Tom Wheeler, Chairman, FCC (Mar. 25, 2014),
available at http://go.usa.gov/KFhw.
6 See President’s Council of Advisors on Science and Technology, Report to the President: Realizing the Full
Potential of Government-Held Spectrum to Spur Economic Growth (rel. July 20, 2012) (PCAST Report); see also
Amendment of the Commission’s Rules with Regard to Commercial Operations in the 1695–1710 MHz, 1755–1780
MHz, and 2155–2180 MHz Bands
, GN Docket No. 13-185, Notice of Proposed Rulemaking and Order on
Reconsideration, 28 FCC Rcd 11479, 11579–80 (2013) (Statement of Commissioner Ajit Pai, Approving in Part and
Concurring in Part) (AWS-3 NPRM) (citing National Telecommunications and Information Administration, United
States Frequency Allocations: The Radio Spectrum (Aug. 2011)).
7 Spectrum Act § 6701(a)(3) (amending Section 113(j) of the National Telecommunications and Information
Administration Organization Act (47 U.S.C. § 923)).
8 Spectrum Act § 6701(a)(3), codified at 47 U.S.C. § 923(j)(2).
9 AWS-3 NPRM, 28 FCC Rcd at 11482, para. 2.
10 See Letter from Julius Genachowksi, Chairman, FCC, to Lawrence E. Strickling, Assistant Secretary for
Communications and Information, U.S. Department of Commerce, at 1 (March 20, 2013), available at
http://go.usa.gov/2VR5; see also Testimony of Commissioner Ajit Pai, Hearing before the U.S. Senate Committee
on Commerce, Science, and Transportation, “Oversight of the Federal Communications Commission” at 2–3 (Mar.
2

And it’s far from certain whether clearing the 1755–1780 MHz band was ever seriously
considered under the Spectrum Act standard. As the Commission readily acknowledges in this Order,
NTIA charged the Commerce Spectrum Management Advisory Committee (CSMAC) working groups
with “addressing sharing issues” related to the spectrum at hand, not clearing.11 It also directed those
groups to use NTIA’s Fast Track Report “as the bases for beginning” their discussions,12 even though that
Report was prepared to assess the feasibility of sharing, not clearing.13 And on the heels of this directive
came the PCAST Report, which largely dismissed clearing as an option, as I noted at the time.14 These
decisions beg the question of whether the law is effectively a dead letter.
None of this is to say that clearing and relocating federal users is easy. Federal agencies are
focused on achieving their missions. And they often lack incentives to relocate and clear spectrum for
commercial use. But whatever the challenges, the statute favors clearing, not sharing.
The fact that NTIA has yet to publicly determine that clearing these bands is not feasible puts us
in a tight spot. We have a statutory deadline to auction and license the AWS-3 band, so we need to move
forward with service rules so that wireless operators can begin planning their bids. But coming up with
service rules requires a fair degree of clarity on the status of federal holdings. Getting that clarity, in turn,
requires extensive communications with federal users, with NTIA as the go-between. So we end up in a
game of telephone, made worse because we typically have to accept the government’s say-so on the
details of federal use.15 I hope we may find a better way, but for now we must muddle through.
I thank my colleagues on both sides of the aisle for accommodating some of my suggestions, such
as including in this item a mechanism that will allow us to monitor the progress being made by those

12, 2013) (calling on the Commission to “commence the notification-and-auction process now to preserve our
ability to auction the 1755–1780 MHz spectrum paired with the 2155–2180 MHz spectrum”), available at
http://go.usa.gov/2Vj3.
11 Order at para. 9.
12 See U.S. Department of Commerce, National Telecommunications and Information Administration, Framework
for Work within CSMAC, available at http://go.usa.gov/KMXC (NTIA Framework); see also U.S. Department of
Commerce, An Assessment of the Near-Term Viability of Accommodating Wireless Broadband Systems in the
1675–1710 MHz, 1755–1780 MHz, 3500–3650 MHz, 4200–4220 MHz, and 4380–4400 MHz Bands at 2-3–2-4
(Oct. 2010), available at http://go.usa.gov/KM9z (Fast Track Report).
13 Fast Track Report at 1-4 (“NTIA and the Federal agencies performed this Fast Track Evaluation . . . to evaluate
four bands by October 1, 2010, to determine if any spectrum in these bands could be made available on a
geographical sharing basis for wireless broadband use within five years.”); see also id. (“This Fast Track Evaluation
provides the analysis results for these candidate frequency bands and recommends the necessary actions that would
be required to accommodate broadband wireless services on a shared basis.”).
14 See Statement of Commissioner Ajit Pai on the Report of the President’s Council of Advisors on Science and
Technology (July 20, 2012), available at http://go.usa.gov/KMaQ.
15 In fact, the majority of the CSMAC members stated that “because only limited technical data was shared about
Federal systems with the working groups, participants were not able to fully engage in the type of informed
discussion of the analysis and underlying assumptions necessary to verify the accuracy of the information.” See
Separate Statement Concerning Working Group Reports for the 1755–1850 MHz Band (Aug. 29, 2013) available at
http://go.usa.gov/KM9P. I should note as well that NTIA’s Fast Track Report deferred making any
recommendations regarding the 1755–1780 MHz band, and when NTIA later assessed the full 1755–1850 MHz
band—reaching the conclusion that repurposing the entire 95 MHz would cost $18 billion over 10 years—NTIA did
not evaluate the possibility for clearing just the 1755–1780 MHz band. See U.S. Department of Commerce, An
Assessment of the Viability of Accommodating Wireless Broadband in the 1755–1850 MHz Band (Mar. 2012),
available at http://go.usa.gov/KM9G.
3

federal incumbents that are relocating. As we move closer to auctioning this spectrum, I look forward to
working with my colleagues to ensure that federal incumbents provide thorough, substantive, and
substantiated transition plans. Potential licensees must have adequate information about the nature and
extent of incumbent operations in order to value the spectrum and formulate bids.
Finally, I cannot approve of the Order’s adoption of an interoperability mandate on AWS-3
licensees given that the AWS-3 NPRM never proposed such a rule.16 Nevertheless, because that mandate
only spans the 1710–1780 MHz and 2110–2180 MHz bands, and because international standards to cover
those bands are already being developed, I hope that error will be harmless.17
Many thanks to the team that negotiated for countless hours with their executive branch
counterparts, drafted this item, and worked with my office over the past several weeks, including Richard
Arsenault, Valerie Barrish, Peter Daronco, Connie Diaz, Nese Guendelsberger, David Horowitz, Bill
Hueber, Julius Knapp, John Leibovitz, Paul Malmud, Gary Michaels, Tom Mooring, Brian Regan, Ron
Repasi, Bill Richardson, Genevieve Ross, Blaise Scinto, Roger Sherman, John Spencer, Joel Taubenblatt,
Jeffrey Tignor, Tom Tran, Brian Wondrack, Janet Young, Nancy Zaczek, and Stephen Zak. I hope your
tireless efforts are rewarded with a successful AWS-3 auction later this year.

16 At best, the AWS-3 NPRM sought comment on possible technical or operational rules that would protect certain
services “from harmful interference.” See AWS-3 NPRM, 28 FCC Rcd at 11517, para. 85; Order at para. 225. But
that section proposed to adopt the same technical requirements for AWS-3 that apply to AWS-1, and AWS-1 has no
interoperability mandate. Neither that paragraph, nor any other portion of the AWS-3 NPRM, discusses or proposes
an interoperability rule.
17 Of course, expanding that mandate to other spectrum bands may be positively harmful, and there is no emergency,
to my knowledge, that could countenance such a violation of the Administrative Procedure Act.
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