CBRS: The Path Ahead

The Citizens Broadband Radio Service (CBRS) was originally envisioned as a true people's broadband radio service - one that would be either free or highly affordable for small, locally-based operations of limited breadth and duration. The paradigm was a conscious break from the Metropolitan Statistical Area - or- larger sized service areas with 10-year renewable terms that have dominated regulatory thinking for the last few decades, effectively limiting the licensees of most new spectrum to billion-dollar companies with plenty of cash to acquire licenses. Those companies have pushed strongly to rearrange at least some portion of the CBRS band into the standard Big Company-favoring model.

There appears to be the strong sentiment on the FCC's eighth floor for a movement in that direction, so the service has been treading water while the FCC considers whether to increase the size, term, and length of licensed Priority Access Licensees (PAL) operations in the 3550-3700 MHz band. I expect FCC action in the relatively near future since the pace of ex parte contacts has accelerated in the last month. While much remains up in the air as I type, current and potential General Authorized Access (GAA) Citizens Band Radio Service users can nevertheless be thinking ahead about how and whether they can sustain uninterrupted operations under the new CBRS licensing and usage program already adopted by the FCC.

Current system. Under the rules that have governed the use of the 3650-3700 MHz band for the last ten years or so, all users were nationally licensed on a non-exclusive basis. While users were required to cooperate with other licensed users with registered sites and make every effort to avoid interfering with other users, no one is guaranteed interference-free operation. Since usage of this band has not been heavy, it has usually been possible for multiple non-exclusive users to avoid interfering with each other in the same geographic areas. The new regulatory paradigm makes things more complicated.

CBRS. Under the CBRS plan, there will be:

• Incumbent Users: generally federal government users near the coasts and around certain government facilities, but also Grandfathered Users for a period of time;
• Priority Access Licensees (PAL): people who acquire priority usage rights through an FCC auction;
• GAA users: those users who are the equivalent of unlicensed users since they have few rights vis a vis other categories of users or each other.

Federal incumbents will always have the highest priority to use the spectrum and may bump all other users if they need access. Grandfathered incumbents - existing licensees who registered their transmitter sites as of April 16, 2016 and who have kept those stations operational since then - have priority over other PAL and GAA licensees for the duration of their grandfathered term, which will not exceed five years from 2015.*

PAL users have a higher priority than GAA users, have first access to available spectrum, and can bump GAA users if they need spectrum to accommodate what they bought in the auction and no other spectrum is available.

Finally, GAA users register in the system and are assigned spectrum on an "as available" basis. The SAS entity which assigns spectrum to competing users according to the prioritization scheme established by the FCC will try to accommodate all users so they can operate without interference, but no GAA user is entitled by right to interference protection from other users. Here is the FCC rule:

96.35 - General Authorized Access Use

(a) General Authorized Access Users shall be permitted to use frequencies assigned to PALs when such frequencies are not in use, as determined by the SAS.

(b) Frequencies that are available for General Authorized Access Use shall be made available on a shared basis.

(c) General Authorized Access Users shall have no expectation of interference protection from other General Authorized Access Users operating in accordance with this part.

(d) General Authorized Access Users must not cause harmful interference to and must accept interference from Priority Access Licensees and Incumbent Users in accordance with this part.

(e) General Authorized Access Users operating Category B CBSDs [higher powered stations] must make every effort to cooperate in the selection and use of available frequencies provided by an SAS (the System Administrator) to minimize the potential for interference and make the most effective use of the authorized facilities. Such users shall coordinate with an SAS before seeking station authorization, and make every effort to ensure that their CBSDs operate at a location, and with technical parameters, that will minimize the potential to cause and receive interference among CBSDs. Operators of CBSDs suffering from or causing harmful interference are expected to cooperate and resolve interference problems through technological solutions or by other mutually satisfactory arrangements.

As with the current system, there is an obligation on the part of all licensees to cooperate to resolve interference problems and there is no right to "hog" a particular spectrum band or even any particular amount of spectrum.

The FCC has expanded the original 3650 - 3700 band by an extra 100 MHz. It has at the same time reserved the 50 MHz from 3650 to 3700 for GAA operations. This means the GAA operators in this band can be bumped by Federal or Grandfathered incumbents, but will not have to worry about PALs demanding access to this band. PALs will be licensed in up to seven 10 MHz channels in the 3550 - 3650 MHz part of the CBRS band. GAA licensees can also operate in that part of the band, but they will be subject to bumping by PALs there. So GAA operators will have 50 MHz to themselves plus an additional 30 MHz that should be available in the band shared with PALs.

The FCC's rules are intended to "ensure" that PAL users have access to the amount of spectrum they bought in the auction (as many as four 10MHz channels), so while the FCC's rules do not expressly indicate that lower priority users can be bumped, this seems inherent in the assurance granted by license ownership. The situation of a non-grandfathered user in the exclusive GAA part of the band is not clear in the FCC's rules and orders. The user has no right to protection from interference, but the SAS is supposed to accommodate as many users as possible in assigning frequencies. It has the power to bump users or limit their time on the air or the amount of spectrum they are assigned.

Ordinarily, the SAS would not bump a GAA user offline unless there was a competing request for spectrum and no other way to accommodate both users, but if demand was high and there was an insufficient supply of spectrum to satisfy everyone, a user who was providing service could theoretically be interfered with by another user. The SAS will try to coordinate usage so that all parties seeking spectrum can use it effectively, but if there is more demand than supply in a particular area, there would be the possibility of reduced spectrum, reduced access, or interference. While excessive demand is unlikely to be a problem in the most rural areas, the lack of a "right" to maintain service in the face of a competing demand may make it problematic to depend solely on GAA usage when service to customers is mission-critical and a service interruption is not acceptable.

All of this suggests that small-scale "citizen"-based broadband services may still have a place in the new CBRS, but users will have to be nimble and expect at least occasional service disruptions.

*3650 MHz Band incumbent users will receive protection for five years after the 3.5 GHz Order adoption date of April 17, 2015, or for the remainder of the license term, whichever is longer, with the exception that Part 90 incumbents licensed after January 8, 2013, will be limited to a protection period of five years after the 3.5 GHz Order adoption date. See 3.5 GHz Order 30 FCC Rcd at 4075-76, para. 400.