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FCC's O'Rielly confirms departure; agency votes to free up more midband for 5G

Michael O'Rielly, a Republican member of the U.S. Federal Communications Commission, stated in clear terms that he will be leaving the commission by the end of the year.

O'Rielly had been going through the renomination process for another term earlier this summer until his nomination was abruptly withdrawn in August. While President Donald Trump did not give a reason for withdrawing O'Rielly's nomination, some political observers believe it may have been related to the commissioner's comments about First Amendment protections and the FCC's authority to define certain legal protections under Section 230 of the Communications Decency Act. That legislation protects internet platforms from civil and criminal liability for content created and posted by users.

Multiple GOP senators pushed Trump to reinstate O'Rielly's nomination, but Trump instead nominated Nathan Simington, Communications Daily reported. Simington is a senior adviser at the National Telecommunications and Information Administration, an agency within the U.S. Department of Commerce principally responsible for advising the president on telecommunications and information policy issues. Simington reportedly played a large role in drafting the agency's petition that was mandated under a controversial social media executive order signed by Trump in May.

"The fact of the matter is my time and service is coming to an end, regardless of the November presidential election," O'Rielly said, speaking at the commission's monthly open meeting Sept. 30. O'Rielly added that he does not seek "for anyone to pursue my continued service at the commission beyond my current term, which will conclude at its appropriate point sometime later this year."

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Turning to policy matters, the agency took steps at the meeting to open up midband spectrum for commercial 5G use and to reform how the regulator approaches foreign ownership applications.

Among the items the agency approved was on an order that eliminates the nonfederal radiolocation service allocation in the 3.3-3.55 GHz band and the nonfederal amateur allocation in the 3.3-3.5 GHz band, but allows incumbent licensees to keep operating in the 3.45-3.55 GHz band until a date in the future.

Under a 2018 law known as the MOBILE NOW Act, Congress directed the FCC to identify spectrum for new mobile and fixed wireless broadband use and to evaluate whether commercial wireless services could share spectrum between 3.1-3.55 GHz with federal incumbents.

Additionally, in August, the Trump administration said 100 MHz of contiguous midband spectrum will be made available for commercial 5G deployment, and the American wireless industry will be able to build and operate 5G networks nationwide using the 3.45-3.55 GHz band.

The FCC said the 3.45-3.55 GHz band is currently used by the U.S. Department of Defense for high-powered radar systems on fixed, mobile, shipborne and airborne platforms. Consistent with Congress' directive, the Defense Department intends to allow commercial deployments in the band by adjusting its operational concepts for many of the systems, to the extent it can, without completely vacating the band.

The item also contains a notice of proposed rulemaking to make 100 MHz of spectrum in the 3.45-3.55 GHz band available for flexible wireless services usage, including 5G. The item, which was unanimously approved, will also relocate nonfederal radiolocation licensees to the 2.9-3.0 GHz band.

In more midband spectrum news, the commission approved an order that it said would give states the opportunity to lease 4.9 GHz band spectrum to third parties, including commercial and critical infrastructure entities. A public draft of the item shows that it also eliminates a requirement that leased spectrum must be used to support public safety.

Both Democrats on the commission opposed the item.

"The approach we adopt today may not be perfect, but it's better than any of the alternatives that have been proposed," said Republican FCC Chairman Ajit Pai. "The 4.9 GHz band is well suited to meet this nation's growing demand for midband spectrum."

The agency said use of the spectrum is currently limited to public safety purposes and that the band is underused outside of major metropolitan areas, with high equipment costs and limited availability of broadband equipment among barriers to its use.

A third item approved by the FCC adopted rules and procedures, consistent with an executive order signed by Trump in April, to improve the timeliness and transparency of the regulator's process to coordinate how it considers applications before the commission that have reportable foreign ownership with executive branch agencies.