It’s Time for Congress to Ask Some Questions About the 5G Dispute

The long awaited 5G rollout was once again delayed Wednesday due to ongoing disagreement between the Federal Aviation Administration (FAA) and the Federal Communications Commission (FCC) over potential spectrum interference. Two weeks ago, it appeared that the disagreement had been resolved. But a last minute push by the airline industry to block the plan forced AT&T and Verizon to partially delay the rollout of new 5G towers in areas near airport runways. 

Months after the FAA and airline industry first warned that 5G interference around airports could potentially interfere with aviation equipment, wireless carriers have agreed to yet another rollout delay. This time, the airline industry upped the ante by threatening to ground or delay thousands of flights. With the FCC and telecommunications industry making their frustrations crystal clear, it is uncertain when – or if – this dispute will be resolved.    

It’s time for Congress to ask some questions. 

The Dispute in Brief

As we highlighted in a previous blog, the FAA, FCC, and their respective regulated industries have been engaging in an intense dispute for months surrounding the rollout of 5G services in the C-Band. 

On one side, the FAA and aviation industry, led by the Radio Technical Commission for Aeronautics (RTCA), claim that there is a “major risk that 5G telecommunications systems in the 3.7–3.98 GHz band will cause harmful interference to aeronautical radar altimeters (RAs) on all types of civil aircraft.” The FAA issued a Special Airworthiness Information Bulletin (SAIB) in November of 2021 and began collecting the information necessary to verify this safety concern. In response, both sides negotiated to delay the scheduled rollout of 5G services for one month while they investigated. The FAA and aviation industry still maintain that harmful radio interference could result in “catastrophic failures.”        

On the other side, the FCC and telecommunications industry contend that these concerns are unfounded. The CTIA sent a scathing letter to the FCC that heavily criticized the conclusions drawn by the RTCA and citing significant “evidence that RTCA’s assertions are not supported by sound science.” The CTIA has repeatedly pointed out that 5G services already operate in the C-Band spectrum in over three dozen countries “without causing harmful interference to aviation equipment.” 

Furthermore, the FCC’s March 2020 Report and Order on expanding flexible use of the C-Band for 5G held that proper precautions had been implemented to protect altimeters from harmful interference. The most significant safeguard put in place by that order was a 220 MHz “guard band” to separate aviation equipment from 5G signals. The FAA maintains that the guard band and other voluntary safeguards put in place by the telecom industry are insufficient.            

Recent Developments

On New Year’s Eve, Secretary of Transportation, Pete Buttigieg, and FAA Administrator, Steve Dickson, sent a letter to AT&T and Verizon with a relatively vague proposal for a “near-term solution for advancing the co-existence of 5G deployment in the C-Band and safe flight operations.” The letter warned that failure to “reach a solution by January 5” – the day that wireless carriers had intended to begin rollout of 5G on the spectrum in question – “[would] result in widespread and unacceptable disruption” in air traffic.

The DOT/FAA framework proposed that “commercial C-Band service would begin as planned in January with certain exceptions around priority airports.” In short, the FAA planned to identify “priority airports” around which C-Band services could not be rolled out while the Administration performed an assessment of potential interference. After this assessment, the FAA would have then allowed for deployment of C-Band services “on a rolling basis, such that C-Band planned locations [would] be activated by the end of March 2022, barring unforeseen technical challenges or new safety concerns.” The framework further requested that the wireless carriers delay all C-Band rollout for “no more than two weeks” until the FAA could establish which areas should be considered “priority airports.” Those two weeks have already elapsed. 

The two wireless carriers responded in a January 2nd letter. AT&T and Verizon categorically rejected the proposal, citing the years-long approval process undertaken by the FCC “which found, among other things, that its rules would fully ‘protect aeronautical services in the 4.2-4.4 GHz band.’” The companies also reiterated their previous commitment to voluntarily implement “considerable mitigation measures” to prevent interference with RAs, including their commitment to adopt C-Band radio exclusion zones around the runways at certain airports. 

The letter from AT&T and Verizon continued:

“At its core, your proposed framework asks that we agree to transfer oversight of our companies’ multi-billion dollar investment in 50 unnamed metropolitan areas representing the lion’s share of the U.S. population to the FAA for an undetermined number of months or years…We are, however, committed to continue our cooperation with your Department and all interested parties, including the offer of further mitigations described below, on the condition that the FAA and the aviation industry are committed to doing the same without escalating their grievances, unfounded as they are, in other venues.” 

FCC Commissioner Brendan Carr issued his own response to the DOT on New Year’s Day. Commissioner Carr’s letter reads in part:

“The FCC authorized those C-Band operations pursuant to a detailed regulatory regime that the Commission adopted over 660 days ago in a thorough, 258-page decisional document. After years of work and tens of billions of dollars of investment, those providers are scheduled to begin the safe and lawful delivery of C-Band services in four days. Despite all of this, your letter seeks to prevent those wireless providers from delivering 5G services pursuant to the FCC’s C-Band rules and, in fact, it proposes to replace the FCC’s regulation with an undefined, new regulatory framework for C-Band operations that the Department of Transportation – not the FCC – would determine at some unspecified date in the future. This is a highly irregular request and one that deviates from the clear, statutory process specified by Congress for regulating the provision of wireless service.”

In a last-minute reversal, AT&T and Verizon announced on January 3rd that they had, in fact, agreed to the proposed two-week delay on rolling out 5G. According to their statement, they “remain committed to the six-month protection zone mitigations.” However, this agreement was apparently not enough for the FAA and airline industry.

In yet another letter sent to the Biden administration on January 17th, Airlines for America – a trade group representing major North American airlines – and 11 major air carriers urged the Administration to halt all 5G rollout “within the approximate 2 miles of airport runways at affected airports.” With no timeframe for future rollouts, Airlines for America is effectively now asking for an indefinite delay. The letter continues: 

“Immediate intervention is needed to avoid significant operational disruption to air passengers, shippers, supply chain and delivery of needed medical supplies. The harm that will result from deployment on January 19 is substantially worse than we originally anticipated…”

In response, AT&T and Verizon issued a statement that they “voluntarily agreed to temporarily defer turning on a limited number of towers around certain airport runways as we continue to work with the aviation industry and the FAA to provide further information about our 5G deployment.” But the telecom industry’s irritation by the continual moving goal post is clear. The wireless carriers further stated: 

“We are frustrated by the FAA’s inability to do what nearly 40 countries have done, which is to safely deploy 5G technology without disrupting aviation services, and we urge it do so in a timely manner. We are launching our advanced 5G services everywhere else as planned with the temporary exception of this limited number of towers.”   

The Cost of the Ongoing Delays 

After multiple rounds of negotiations and concessions from both sides, it appears that the dispute between the FCC and FAA is still far from a resolution. While the telecom industry has agreed to another rollout delay, much remains in flux. Should the aviation industry decide to take the matter to court, it is reasonable to expect significant further delay of 5G rollout at a time when policymakers should be encouraging deployment. 

The COVID-19 pandemic and its resultant lockdowns demonstrated that access to high-speed internet is a necessity for individuals and businesses across the country. With more people than ever turning to mobile smartphones over traditional broadband services, 5G connectivity is poised to enable greater productivity, efficiency, and mobility for millions of Americans. This is to speak nothing of the massive economic potential that 5G technology provides. 

What’s more, with the Chinese Communist Party (CCP) champing at the bit to lead the world in 5G, further delays in deployment would put us farther behind. While the CCP has been consistently building out its mobile networks, the United States has been plagued by years of regulatory squabbles over spectrum. The continuing dispute between the FCC and FAA is only the latest example. While it is essential that regulators take the necessary precautions to protect the public, it is also important that we not get in our own way when it comes to deploying 5G.  

As I wrote in November, airplanes will continue to fly, and wireless carriers intend to move forward with the rollout of 5G. The question then becomes how to resolve this dispute rapidly to clear the way for deployment while ensuring the safety of air services. 

It’s Time for Congress to Ask Questions 

To expedite a resolution, Congress should step in. Employing their fact-finding role, Congress could easily convene a hearing or series of hearings to bring all parties to the table. Bringing in the various industry groups along with the FCC, FAA, and DOT to discuss the various claims made by both sides could spur more productive discussion. If not, then Congress could step in and resolve the matter statutorily. With the FCC claiming that the DOT is exceeding their statutory authority, this may be the most efficient course of action.

In particular, the FAA has never directly answered the claim that C-Band services have safely been rolled out near airports in foreign countries. Congress should take the opportunity to determine what (if any) precautions have been taken abroad that should be implemented domestically. Congress should also take the opportunity to clarify the FAA’s claim that the 220 MHz guard band is insufficient. With the FCC in attendance, direct questioning on such matters could lead to a much more rapid resolution than through the courts or seemingly endless regulatory negotiations. 

While Congress has a full plate in 2020, there is ample time and opportunity for it to reassert its constitutional role and oversee our regulatory agencies. Lawmakers should do everything within their power to resolve this dispute without the delays of litigation. If the FAA and FCC cannot reach an agreement on the deployment of 5G in the C-band, then it is time for Congress to step in.

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