The NDAA: What it Means for 5G and Spectrum Policy in the U.S.
By: Joel Lauren Thayer
Tags: Ndaa, Spectrum, FCC, Congress, 5g

The National Defense Authorization Act (NDAA or Act) is here and, yes, it includes language concerning Ligado Networks’(Ligado) operations in L-Band. Here’s the good news: the Federal Communications Commission’s (FCC’s or Commission’s) Ligado Order that modifies Ligado’s FCC license to deploy Internet of things (IoT) services is virtually unaffected. However, the bad news is that future squabbles between the FCC and the Department of Defense (DoD) over spectrum for 5G will carry on. The reason being is that the DoD is still the primary user of the U.S.’s “beachfront” mid-band spectrum — an almost essential resource for nationwide 5G network deployment.

Thankfully, this NDAA’s adoption of the FCC’s harmful-interference standard is mostly helpful and does not stand in Ligado’s way in bringing its 5G-Internet of things (IoT) solutions to market. However, it remains imperative for Congress to continue to exercise the same resolve against the DoD as it did in this NDAA, or innovations leveraging spectrum, like 5G or IoT technologies, will become far more difficult to rollout in the U.S.

How did we get here?

With the advent of 5G, Ligado’s technology and its licensed, L-Band spectrum can help enhance mid-band spectrum deployment and strengthen IoT services in a manner that is both cost-effective and swift. L-Band’s propagation and proximity to C-Band puts Ligado-a licensee of L-Band spectrum-in a prime position to assist the FCC’s goals of rapidly deploying 5G in a cost-efficient manner. For example, these two bands together can add optical fiber capacity in wavelength-division multiplexing (WDM) technology, which is a technique that can double a 5G network’s capacity with less infrastructure. Innovations, like WDM, make the combination of L-Band and C-Band a key asset in accelerating 5G deployment. For example, it will enable carriers to deploy these networks nationwide in a more cost-effective manner.

However, before the Ligado Order, Ligado was not permitted to perform such services given the terms of its license with the FCC. To do so, Ligado needed to petition the FCC for a modification.

The FCC’s process in modifying Ligado’s license was painstaking. All told, the Commission took about 17 years to conclude the proceeding. Its team of engineers performed rigorous tests to ensure that Ligado did not interfere with GPS operations from either private or public stakeholders occurring in adjacent bands. In addition of course, the FCC did not work in a vacuum, but rather operated within the U.S.’s tried-and-true interagency process for spectrum allocation with the National Telecommunications and Information Administration (NTIA) — the agency that manages government spectrum users. In a bipartisan effort, the FCC unanimously promulgated its Ligado Order granting Ligado’s petition to modify its license on April 19, 2020, subject to a slew of restrictions (e.g., a massive 23 MHz guard band, a 24/7 stop buzzer to prevent interference, etc.).[1]

Even with the FCC’s extensive safeguards in place, some DoD officials were not satisfied. Understanding that it had limited, if any, legal or regulatory recourse at the Commission, the DoD took the fight to Congress by exerting its influence over both House and Senate Armed Services Committees. Interestingly, neither of those committees are committees of jurisdiction over the FCC. However, the DoD, in turn, was able to successfully persuade key members of those committees into adding language into the NDAA.

Where are we now?

The NDAA passed last Friday. Barring a Presidential veto, the latest version of the legislation will be the likely operating language for the next year. The good news is that Congress agrees with and even adopted the FCC’s harmful interference standard for such DoD disputes with Ligado. However, there are some concerning provisions. The most concerning language is in Section 1662 of the NDAA. This section allows the Secretary of Defense to refuse to contract or renew a contract with entities operating commercial terrestrial communication networks in frequencies near Ligado’s (i.e., the 1525–1559 MHz band or the 1626.5–1660.5 MHz band) on the basis of harmful interference with its GPS devices.[2] However, consistent with the other NDAA provisions at issue, this concern is mitigated by the Section’s exception stating that the Secretary must use the FCC’s harmful interference standard in making such an assessment. [3] Read carefully, one would find that this exception takes the teeth out of the Section and, by in large, upholds the FCC’s Ligado Order due to the Ligado Order measuring interference using the same standard for the same GPS devices.

Moving Forward

This whole kerfuffle should enlighten future FCCs as to the lengths at which the DoD will go to maintain its near-monopoly on government-used spectrum. Thankfully, this time Congress stepped in allowing Ligado and the FCC to walk away from this dispute nearly unscathed. More importantly, Ligado can now move forward to provide an innovative solution to an overarching problem the United States has with 5G: access to mid-band. Now that the FCC is auctioning off 280 MHz of C-Band spectrum,[4] Ligado can partner with those licensees to provide much needed density to our national 5G networks. Without this mid-band spectrum, 5G will be limited to major urban markets only, thus, prohibiting millions of rural Americans from participating in the 5G-IoT economy. It is part of the reason why the FCC made the C-Band part of its 5G-Fast Plan.[5]

With the 5–0 bipartisan, fact-based FCC decision remaining unchanged by the NDAA language (despite the best efforts of special interests and spectrum NIMBYism), Ligado can continue to move forward with putting its licensed L-Band spectrum to its highest use. Armed with nearly $4 billion in new funding from investors, Ligado can play an integral role in bringing the 5G-IoT revolution to the masses, launching the first-ever satellite-terrestrial network that can revolutionize the way entire industries operate and creating more opportunities and solutions for wireless carriers, big and small as we usher in the 5G era.

However, the fight does not end here. If this trend at the DoD continues, then rolling out 5G will be next to impossible because, as mentioned earlier, the DoD is the largest user of government-occupied spectrum. Without its cooperation, the United States will remain woefully behind in 5G deployment and consumers will not be able to take full advantage of the IoT revolution. Although the Ligado Order can now move forward, Congress must continue to support the agencies that it has designated as the experts, in this case the FCC, and continue to side with innovation over politics.

Joel L. Thayer is an attorney with Phillips Lytle LLP and a member of the firm’s Telecommunications and Data Security & Privacy Practice Teams. Prior to joining Phillips Lytle, he served as Policy Counsel for ACT | The App Association, where he advised the Association and its members on legal and regulatory issues concerning spectrum, broadband deployment, data privacy, and antitrust matters. Prior to ACT, he also held positions on Capitol Hill, as well as at the FCC and FTC. The views expressed here are his own and do not reflect those of Phillips Lytle LLP, or the firm’s clients.

[1] LightSquared Technical Working Group Report; LightSquared License Modification

Application, IBFS Files Nos. SAT-MOD-20120928–00160–00161, SES-MOD-20121001–00872; New LightSquared License Modification Application, IBFS File Nos. SES-MOD-20151231–00981, SAT-MOD-20151231–00090, and SAT-MOD-20131231–0091; Ligado Amendment to License Modification Application IBFS File Nos. SES-MOD-20151231–00981, SAT-MOD-20151231–0090, and SAT-Mod-20151231–00091, IB Docket Nos. 11–109; 12–340–11–109; 12–340; 11–109, Order & Authorization, FCC 20–48 (2020). Available at https://docs.fcc.gov/public/attachments/FCC-20-48A1.pdf (Ligado Order).

[2] NDAA, H.R. 6395, 116th Cong. § 1662 (2020).

[3] Id.

[4] In the Matter of Expanding Flexible Use of the 3.7 to 4.2 GHz Band, GN Docket №18–122, Report and Order and Order of Proposed Modification, 35 FCC Rcd 2343 (2020).

[5] FCC, The FCC’s FAST Plan, FCC Website (last visited Dec. 9, 2020). Available at https://www.fcc.gov/5G.