Wheeler leaves FCC with the legacy of his creative chairmanship in doubt

FCC chairman Tom Wheeler has announced he will be stepping down from the helm on January 20, the same day that president-elect Donald Trump will be inaugurated. Wheeler was appointed by current president Obama, and despite a sometimes fractious relationship, both men have followed a more pro-consumer model than many past administrations, and one which has been criticized by Trump.

So Wheeler was widely expected to resign almost immediately the new chief took over, but his departure deals a big blow for consumers, particularly in areas like net neutrality and the open set-top initiative.

His three years running the FCC will be remembered for several major initiatives, which have seen varying degrees of success. In wireless, these are headed by the 600 MHz incentive auction (much delayed and ultimately a failure); the Title II order which sets out tough net neutrality rules for mobile and fixed broadband; some creative approaches to freeing up spectrum, including approval of the CBRS multi-tiered sharing system in 3.5 GHz; and the identification of several high frequency spectrum bands as the basis for 5G trials and early deployments.

Also, in early 2015, the FCC voted to overturn large parts of two state laws that limit local governments from funding and building broadband networks, which will also end the long-running cat fights, in some states, over city WiFi networks.

Several groups praised Wheeler’s work at the FCC. He will leave a “rich legacy of Internet safeguards designed to empower and protect average Americans,” said Jeff Chester, executive director of the Center for Digital Democracy, a privacy group.

Chester added in an interview: “From network neutrality that helps ensure there are no online gatekeepers, to rules on privacy that protect the information of consumers and families, the Internet in the US is a fairer and safer place due to Tom Wheeler. A crucial test for the Trump White House will be whether it preserves these important decisions designed to help everyday Americans … or whether it will “trade away American digital rights to help the super-rich and powerful phone, cable and Internet companies.”

The most contentious aspect of his chairmanship has certainly been the revised net neutrality code.  During the election campaign, Trump made some vague comments about this issue, such as: “Obama’s attack on the internet is another top down power grab”, which have led to some speculation that he will reverse the changes.

His comments certainly did not amount to policy, but telcos may take them as a sign of hope that he will favor a change to the recently agreed rules, to make their lives easier. Although the FCC’s amended neutrality code was upheld by a Washington DC appeals court, the telecoms industry is taking their appeal to the Supreme Court (which has not yet agreed to hear it). If Trump appoints a conservative judge to fill the current Supreme Court vacancy, and a pro-telco FCC chief, the rules could be overturned.

In his final FCC meeting, Wheeler addressed some issues around Title II, notably the accusation that it deters companies from investing in broadband (mobile or fixed). Wheeler said commentators should take note of “investment decision numbers as they are reported to the FCC and to shareholders, in which all of the major ISPs are talking about increasing investments”.

But Ajit Pai, a Republican commissioner who is reportedly in the frame to replace Wheeler, has pledged to repeal the new rules and to “take a weed wacker” to other FCC regulations.

Whatever the fate of the net neutrality laws, or the balance of ownership of 600 MHz spectrum between broadcasters and MNOs, Wheeler will be remembered for his aggressive approach on laying foundations for 5G and ensuring the US can be a trailblazer there. It remains to be seen whether the new dynamic approach he has introduced survives the change of leadership, and how far the US succeeds in leading 5G deployment beyond a few showcase networks (or indeed, how far that is necessary to its social and economic progress).

But Wheeler has shown genuine leadership in driving the opening of new spectrum for 5G, especially in the millimeter wave bands, and his passion for the cause was clear in a speech to the Washington DC press in June, outlining his proposals, due the following month, to allocate certain bands for pre-5G projects. In October 2015, the FCC had issued a Notice of Proposed Rulemaking to create “flexible use service rules” in four high frequency bands, 28 GHz, 37 GHz, 39 GHz and 64-71 GHz.

Wheeler had billed his address as ‘The Future of Wireless: A Vision for US. Leadership in a 5G World’ and enlarged on that theme, saying that if the FCC “approves my proposal next month, the United States will be the first country in the world to open up high band spectrum for 5G networks and applications. And that’s damn important because it means US companies will be first out of the gate.”

He added: “Yes, 5G will connect the unconnected and compete with the uncompetitive. Millions of Americans can’t access high speed connectivity because it’s too costly to run fiber to the home. By opening up these higher frequency bands, we are making available more licensed spectrum for mobile than in the cumulative history of mobile spectrum allocation.”

The availability of spectrum in the underused, high capacity airwaves in 28 GHz and above would revolutionize the economics of mobile bandwidth for applications, especially in the IoT, which do not require long range. Meshes of very small cells controlled by virtualized gateways will almost certainly be a key architecture for next generation networks, especially indoors.

The value of these frequencies is already clear in the race by major operators to accelerate trials and push their vendors for prototypes – AT&T, Verizon and T-Mobile all plan to initiate tests this year and in doing so, will help to put US MNOs in an influential position in the development of 5G, feeding real world results into efforts such as 5G air interface standardization.

However, the potential of these airwaves, and Wheeler’s high hopes for them, will be entirely wasted if they are auctioned, licensed and managed in the same old way, and if the big four operators (though Sprint is not planning near term trials) are the sole beneficiaries. The real opportunity which lies in this spectrum is to enable a whole new range of services and providers.

Wheeler has supported this view, but he would have had to face down the opposition of some entrenched interests to push through his full service-driven vision, and it now seems unlikely that his successor will take up that baton. In his speech, he said the FCC would be looking at both licensed and unlicensed service, including what a “massive” 14 GHz unlicensed band which would have “the same flexible-use rules that have allowed unlicensed to become a breeding ground for innovation”.

Another area in which Wheeler’s FCC has been something of a trailblazer has been in flexible approaches to spectrum usage. Early support, under his predecessor, for allowing unlicensed wireless broadband use in the TV white spaces set some interesting precedents; the creation of the shared access Citizens’ Band in the 3.5 GHz spectrum will have more substantial impact.

The big question now will be how, or whether, these creative changes will be turned into the makings of a more open, service-driven wireless network in the US. In consultations with the FCC in mid-2016, Facebook raised some very important issues – notably that, if regulators make rigid rules now, largely based on traditional considerations, they are ignoring the likely changes in the way 5G networks are built, financed, shared and used. If those changes don’t materialize, 5G will be no more than an extension of 4G, making marginal improvements to a mobile broadband data model which is largely broken. To enable lateral thinking and new services, creative approaches must be introduced into the bulk of the new airwaves being opened up, not just a sub-section carved off for unlicensed use.

The social media giant said the emerging shared spectrum technologies, some of them used for 3.5 GHz, will balance the needs of network deployers with those of innovation, allowing both to profit from the whole band. Of course, the company is working on its own network architecture, Terragraph, for building low cost small cells in dense urban environments, currently in 60 GHz, as well as its Project Aries Massive MIMO macrocell.

And there are still plenty of practical obstacles in the way of Wheeler’s, or Facebook’s or Google’s, vision of unleashing huge quantities of low cost wireless capacity with small cells in high frequency bands. One is that the core standards remain an unknown quantity, especially when it comes to an air interface for millimeter wave bands. The outgoing FCC chief himself said: “If anyone tells you they know the details of what 5G will deliver, walk the other way.”

But in his June speech, he made it clear that a good twenty-first century regulator needs to prepare the conditions to move ahead even when many factors are uncertain. “Unlike some countries,” he said, “we do not believe we should spend the next couple of years studying what 5G should be, how it should operate, and how to allocate spectrum, based on those assumptions. … The future has a way of inventing itself. We won’t wait for the standards to be first developed in the sometimes arduous standards-setting process or in a government-led activity. Instead, we will make ample spectrum available and then rely on a private sector-led process for producing technical standards best suited for those frequencies and use cases.”

Deliberately evoking John F Kennedy’s speeches about the space race, he concluded: “Once again, we are looking to the sky to unlock new discoveries and unleash American ingenuity. We are the pioneers of a new spectrum frontier. Working together, we can write the next chapter in the mobile revolution that has already transformed our lives and society.”

So far, no successor nor interim chair has been named. The tenure of Democratic commissioner Jessica Rosenworcel will also end at the end of this year. She has had the renewal of her term as commissioner rejected by the Republican Senate.

Wheeler said in a statement: “Serving as FCC Chairman during this period of historic technological change has been the greatest honor of my professional life. I am deeply grateful to the President for giving me this opportunity. I am especially thankful to the talented Commission staff for their service and sacrifice during my tenure. Their achievements have contributed to a thriving communications sector, where robust investment and world-leading innovation continue to drive our economy and meaningful improvements in the lives of the American people. It has been a privilege to work with my fellow Commissioners to help protect consumers, strengthen public safety and cybersecurity, and ensure fast, fair and open networks for all Americans.”