FCC Opens 4.9 GHz Band to Leasing and Public/Private Partnerships

The FCC recently adopted new rules for the 4940 – 4990 MHz (“4.9 GHz”) Public Safety band to give state governments authority to lease or share this spectrum with non-public safety entities for public safety, private, or commercial service. The new rules provide an opportunity for many types of entities to access 4.9 GHz spectrum for a variety of applications. 

Background

In 2002, the FCC allocated the 4.9 GHz band for exclusive use by public safety agencies. The FCC also allowed public safety agencies to share the band with non-governmental organizations (“NGOs”) that would use the spectrum in support of public safety. It was assumed that this would allow critical infrastructure industries (“CII”) to develop shared radio systems with public safety agencies, but this never evolved, and relatively few public safety agencies obtained licenses for the spectrum or built systems in the band.

In 2018, the FCC invited comment on how it could promote more intensive use of the 4.9 GHz band while also maintaining the band for public safety use. On October 2, 2020, the FCC released its Sixth Report and Order in WP Docket No. 07-100 adopting a new licensing regime for this band. As explained below, the FCC is delegating authority to state governments to manage the 4.9 GHz band, including the right to determine who may use the spectrum and for what purpose. To be clear, the FCC will retain ultimate authority over the spectrum, but for all practical purposes each state will have authority to manage this spectrum as it sees fit. This creates an opportunity for users to work with state governments to deploy systems on this spectrum in public/private partnerships or other commercial arrangements. 

Summary of New Rules

1. 1. The “State Lessor.” The FCC will recognize one statewide government agency in each state as the “State Lessor,” with authority to lease access to the 4.9 GHz band to third parties. The State Lessor will be one of the current statewide licensees in the band or another agency selected by the governor.
   2. Incumbent Public Safety Licensees. Public Safety agencies currently holding licenses in the 4.9 GHz band will be permitted to expand or modify operations within their authorized license areas. However, only the State Lessor will be allowed to lease 4.9 GHz spectrum to third parties.
   3. Leasing Opportunities for States.  Each State Lessor may lease some or all of the 4.9 GHz band to third parties for fixed or mobile use in any portion of the state, including for non-public safety operations and even for commercial use. Leasing will be voluntary, and State Lessors may enter agreements to share equipment or other deployment costs.
   4. Rights and Responsibilities of Lessees.  Lessees may conduct any type of operation, including for private use, commercial service, or in support of public safety. Lessees may install base stations and engage in mobile operations, or install temporary fixed sites, anywhere within the leased area.
   5. Rights of State Lessors.  State Lessors may use the spectrum for any purpose, including non-public safety use. If a State Lessor elects to provide commercial mobile service it will be required to comply with all FCC rules that apply to commercial mobile radio service (“CMRS”) providers. State Lessors may, but are not required, to afford priority access to public safety users as part of its lease agreements with non-public safety lessees. 

Further Proposed Rule Changes

In the Seventh Further Notice of Proposed Rulemaking, the FCC invites comment on whether to further empower state governments in managing the 4.9 GHz spectrum. The FCC is proposing that a “State Band Manager” will be responsible for authorizing any further state or local public safety systems in the band. The State Band Manager could be the same agency designated as the State Lessor or it could be a different statewide agency.

The FCC invites comment on whether states are equipped to take on the role as a band manager, and whether there are any legal issues in giving one state entity authority over other state and local entities. In the alternative to a Band Manager the FCC asks whether the State Lessor should be responsible for entering lease agreements with other state and local public safety agencies, similar to the lease agreements it will enter with non-public safety lessees. 

Finally, the FCC seeks comment on a wide variety of issues related to coordination among systems in the band and between neighboring states.

Comments on the Seventh Further Notice of Proposed Rulemaking will be due 30 days after it has been published in the Federal Register, which has not yet occurred.

Conclusion and Recommendations

The FCC has adopted a very unique licensing regime for the 4.9 GHz band that will rely on direct oversight by state government. At this time, it is doubtful whether any states have given much thought to (1) whether they will enter lease agreements with third parties, (2) which statewide agency should be tasked with this responsibility, (3) the criteria for leasing, or (4) the criteria for managing frequency conflicts among users. Nevertheless, entities foreseeing a desire to use spectrum in the 4.9 GHz band should start to think about leasing arrangements that might create mutual benefit for both the lessee and state or local public safety agencies. Parties interested in gaining access to spectrum at 4.9 GHz are therefore urged to stay aware of states’ plans for implementing these rule changes on future management and use of the 4.9 GHz band. 

Please let us know if you have questions about the 4.9 GHz band or how to access any other spectrum to support your operations.