ICLE Comments to the FCC on the Upper C-Band (3.98-4.2 GHz)
I. Introduction and Overview
The International Center for Law & Economics (ICLE) submits these comments in response to the Federal Communications Commission’s (FCC) notice of proposed rulemaking (NPRM) on the Upper C-Band (3.98–4.2 GHz).[1] ICLE is a nonprofit, nonpartisan research center that promotes law & economics approaches to public policy. Its work seeks to ensure that regulation rests on sound economic analysis and promotes consumer welfare, particularly in dynamic communications markets.
As the FCC evaluates the record, ICLE offers an economic framework for decision-making. Broadband deployment involves substantial sunk costs and operational risks that can deter investment and leave consumers worse off. Spectrum policy should therefore reduce transaction costs, clarify operating rights, and rely on market mechanisms to allocate spectrum efficiently.
Consistent rules across the C-band are central to that objective. Aligning upper and lower C-band service rules will create scale economies in equipment; support wide, contiguous channels; and allow providers to leverage existing infrastructure investments. The Commission should also apply its emerging-technologies framework to reimburse incumbents and incentivize timely relocation, so that new licensees can deploy service quickly.
The FCC must also address harmful-interference concerns. A risk-based interference assessment—evaluating both the probability and severity of interference—will better support coexistence than worst-case assumptions that unnecessarily foreclose productive uses. That framework can accommodate flexible-use licensing while allowing compatible satellite, aviation, and shared-use operations where risk remains acceptable.
Auction design should reinforce, not undermine, these goals. The Commission should emphasize rapid clearing and post-auction flexibility in secondary markets rather than regulatory preferences embedded in expanded bidding credits, allowing price discovery to identify the highest-valued uses.
Finally, close coordination with the Federal Aviation Administration (FAA) and other federal agencies is essential to avoid the delays experienced in the lower C-band transition. Transparent, predictable interagency processes will reduce regulatory uncertainty, support investment, and enable timely deployment of advanced wireless services.
II. Auction Design and Transition Policy for the Upper C-Band
The record supports the FCC’s proposal to adopt the same service rules for the upper C-band as for the lower C-band. The lower C-band framework generated substantial value for licensees and sufficient auction revenues to fund incumbent relocation, while a unified C-band approach increases technical efficiency, lowers deployment costs, and improves investment certainty.
The Commission can also apply its existing emerging-technologies framework to the upper C-band transition. Using auction proceeds and relocation incentives aligns incumbent behavior with rapid clearing and reduces coordination delays, enabling new licensees to deploy service sooner and capture the broader social value of the spectrum.
Consistent rules and timely clearing further support wide, contiguous channels, equipment standardization, and economies of scale, all of which strengthen network performance and accelerate deployment. The Commission should therefore prioritize rapid relocation, predictable operating rules, and post-auction flexibility in secondary markets, while avoiding auction design choices—such as expanded bidding credits—that substitute regulatory preferences for market-based price discovery.
A. Harmonizing Upper and Lower C-Band Rules to Reduce Risk and Deployment Costs
The Commission’s spectrum policy should maximize social welfare by putting radio spectrum to its highest-valued use. Doing so requires more than successful auctions. Licensees must make large, forward-looking investments to deploy service, and those investments carry substantial risk.[2]
Wireless deployment is capital-intensive. Providers must obtain construction permits and zoning approvals, secure access to public rights-of-way, install backhaul, and satisfy environmental and historic-preservation review before earning any return on the spectrum asset.[3] These sunk and uncertain costs shape expected returns. Because the upper C-band will largely support 5G networks, providers also face intense competition from rival networks, which constrains margins and limits upside.
As deployment costs and risks rise, the expected value of licenses falls. That reduces both bidders’ willingness to pay at auction and their incentives to deploy quickly and broadly after the auction. One way to mitigate these effects is to lower transaction costs. The Commission has pursued multiple proceedings aimed at doing so, but it cannot eliminate them entirely.
At its core, spectrum management minimizes the transaction costs of radio coordination. Harmful interference threatens service quality, customer relationships, and brand reputation. As interference risk rises, so does the risk to network investment. Identifying and resolving interference, though, also imposes transaction costs.
The FCC reduces these costs by defining license rights clearly and by providing information about who operates where. Still, it cannot eliminate interference risk. Residual risk increases uncertainty about reliability, service quality, and returns on invested capital. Spectrum policy therefore should provide clear, predictable operating rules and enable scale efficiencies that improve risk-adjusted returns for large sunk investments.
For this reason, the Commission should adopt the same service rules and band plan in the upper C-band as in the lower C-band. Power levels, guard-band alignment, emission masks, and antenna rules should match so that 3.7–4.2 GHz functions as a single, continuous operating environment using the same network equipment.[4]
First, harmonized rules allow wide, contiguous 100 MHz channels. One 100 MHz channel is more spectrally efficient than five 20 MHz channels, because each channel requires guard bands and control signaling that does not carry user traffic.[5] Combining fragmented spectrum eliminates these duplicative inefficiencies.
Carrier aggregation can combine nonadjacent bands, but it does not deliver the same benefits as contiguous spectrum.[6] Aggregation requires smartphones to monitor multiple frequencies and process simultaneous data streams, increasing power consumption and battery drain.[7] Not all devices support complex aggregation combinations, so lower-cost devices cannot realize wider bandwidth benefits without contiguous spectrum. Multiple signals also introduce small scheduling delays that increase latency and can limit ultra-low-latency applications.[8]
Second, harmonization lets providers reuse lower C-band equipment and reduce deployment costs. Carriers have already upgraded thousands of towers with lower C-band radios, which required tower reinforcement, new fiber and power runs, and installation of massive-MIMO equipment. Modern radios often support wide frequency ranges, typically 3.7–4.2 GHz and sometimes 3.3–4.2 GHz.[9] If the rules match, providers can activate upper C-band service through software updates at near-zero incremental installation cost.
Even where new radios are required, carriers can deploy a single wideband unit covering both bands, instead of leasing tower space for separate equipment. Divergent rules—such as different power limits—would force installation of additional radios and create direct and indirect costs.
Harmonization reduces duplicative expenses and deployment risk. That produces direct effects (greater deployment), indirect effects (earlier and more efficient use of construction, engineering, and integration supply chains), and induced effects (productivity gains from faster, lower-latency connectivity). One study estimates each additional 100 MHz of spectrum contributes $264 billion in GDP, 1.55 million jobs, and $388 billion in consumer surplus.[10]
Some commenters urge the Commission to auction smaller channels or narrower geographic licenses to give smaller bidders more opportunity to compete with nationwide providers.[11] Larger licenses can leave some areas initially underutilized, but that critique overlooks their transaction-cost advantages at initial assignment. Efficient allocation often fails when parties must assemble rights across many licenses, markets, and channels.
By assigning broader, clearly defined rights at the outset, the Commission reduces assembly costs and increases auction value. After assignment, licensees can partition, disaggregate, lease, or sell spectrum access where efficient. Secondary markets then allocate spectrum to higher-valued uses over time.
Accordingly, the Commission should not attempt to optimize spectrum use by fragmenting licenses ex ante. Instead, it should maximize post-auction flexibility.[12] The FCC can do so by revisiting partitioning and disaggregation rules and lowering transaction costs for licensees that transfer rights across markets or channels. Secondary markets, rather than regulatory fragmentation, provide the most efficient mechanism to allocate operating rights.
B. Incentivizing Rapid Incumbent Relocation Through the Emerging-Technologies Framework
Wireless providers have strong incentives to deploy service in the upper C-band. Still, reallocation and deployment risks can materially reduce license values relative to the broader economic gains deployment creates. FCC policy therefore should prioritize clearing existing operations quickly, rather than maximizing net auction revenue. The social value of a rapid transition likely exceeds the Treasury’s share of auction proceeds.
The Commission’s emerging-technologies framework, applied in the lower C-band, sought to maximize the value of reallocation by using auction proceeds to incentivize incumbents to relocate. The framework reimbursed necessary relocation costs and offered accelerated-relocation payments before new licensees could begin operations, while also providing time for incumbents to move their services.[13]
Relocation carries operational risk. Incumbents will not accelerate when the risk of service disruption exceeds the compensation offered. Mandatory deadlines alone invite delay, extension requests, and resistance when incentives misalign with rapid clearing. Incentive payments instead align private incentives with the Commission’s objective of timely relocation, reducing delay and coordination costs.
The framework also supports full clearing of the band. Complete clearing both increases auction value and provides technical flexibility for new licensees, creating a greenfield environment for new services. It also aligns the U.S. band plan with the International Mobile Telecommunications (IMT) standards issued globally by the International Telecommunication Union’s (ITU) ITU Radiocommunication Sector (ITU-R), enabling equipment scale economies and lowering deployment costs.
Applying the framework to the upper C-band may require adjustments. Some commenters note that relocation may require alternative transmission approaches. For example, NCTA argues reimbursement should cover not only capital expenditures, but also new operating expenses,[14] and that incumbents need adequate time to maintain service quality and reliability.[15] If incumbents face higher operating costs after transition, relocation will slow unless those costs are addressed. To promote speed, the FCC should allow compensation beyond capital investment where necessary.
The Commission’s objective should be rapid relocation, not Treasury revenue. When applying the emerging-technologies framework to the upper C-band, the FCC should provide sufficient transition funding to reduce relocation risk and enable efficient migration to alternative technologies or frequency bands. Although this approach may reduce net auction proceeds, it will shorten deployment timelines, reduce coordination costs, and allow consumers and communities to realize the benefits of high-speed connectivity sooner.
C. Limiting Bidding Credits to Preserve Market-Based Price Discovery
Some commenters urge the Commission to expand bidding credits beyond those in 47 C.F.R. § 1.2110(f)(2)(i)(B)–(C). Most notably, WISPA seeks a 35% credit for businesses with average gross revenues of $4 million or less over the preceding five years.[16] The argument is that smaller bidders lack the financial resources to compete with nationwide 5G providers but could deliver greater consumer value.
As discussed above, the social value of spectrum auctions often exceeds auction proceeds. Incentivizing incumbents to relocate does not require the Commission to determine which service is more valuable. Relocation payments instead facilitate market price discovery by allowing bidders to reveal how much they value the spectrum.
Bidding credits are different. They require the Commission to favor certain bidders or business models over others. History shows the difficulty of such determinations.[17] Regulators face limited information, potential capture, and incentive misalignment. For these reasons, the FCC has increasingly relied on market mechanisms to determine which users and services value spectrum most highly.
Although the Commission proposes 15% and 25% bidding credits, it should eliminate bidding credits to the extent the Communications Act permits.[18] Removing them would avoid regulatory value judgments and allow the market to determine the highest-valued use of the licenses.
If the Commission retains credits, it should limit them to the proposed 15% and 25% levels and align the auction design with the lower C-band auction.[19]
III. Risk-Based Interference Management and Spectrum Sharing
As a threshold matter, the Commission should maximize concurrent operations in the upper C-band so long as those operations do not cause harmful interference to neighboring services. Historically, interference analysis relied on worst-case assumptions.[20] Regulators evaluated whether interference was physically possible under extreme operating parameters.[21] This approach effectively prevents harmful interference, but it also imposes significant opportunity costs by excluding many otherwise compatible uses.
A risk-based interference assessment takes a more economically grounded approach. Instead of asking whether interference could ever occur, the regulator evaluates how likely it is and how severe the consequences would be.[22] Using probabilistic methods, including Monte Carlo simulations, the analysis categorizes potential harms along a likelihood distribution. The regulator then determines what level of risk is acceptable, given the severity of the harm. A rare but catastrophic outcome would be unacceptable, while a more common event causing only minor service degradation may be tolerable. The key is balancing probability against consequence.
Introducing flexible-use licenses in the upper C-band will increase interference concerns, particularly regarding radio altimeters operating in the 4.2–4.4 GHz band. As the Commission evaluates the technical record and coordinates with other federal agencies, it should assess these concerns through a risk-based framework.
Several commenters also propose productive uses for portions of the band not auctioned for exclusive licenses. SpaceX asks the Commission to authorize supplemental coverage from space in the remaining spectrum.[23] It contends next-generation satellite systems could use the band for downlink and provide direct-to-device service without interfering with radio altimeters.
Similarly, Monisha Ghosh and co-authors propose allocating remaining spectrum to a shared-access regime similar to the CBRS band (3.55–3.7 GHz).[24] They explain:
[T]his left-over spectrum could be utilized in terrestrial wireless deployments by leveraging the successful sharing mechanism used in the CBRS band (3.55 – 3.7 GHz). The Spectrum Access System (SAS) developed for CBRS can be easily extended to determine appropriate power levels for new devices in this band such that no harmful interference occurs to both in-band (FSS) and adjacent band (altimeters) incumbents.[25]
Such an approach could expand use of the band and enable participation by smaller providers unable to obtain nationwide exclusive licenses.
As with terrestrial flexible-use operations, the Commission should evaluate both proposals using risk-based interference analysis. Each could be viable if operations can coexist with incumbents and new terrestrial services at acceptable risk levels. The same analytical framework should govern full-power licenses and shared or satellite operations alike.
IV. Interagency Coordination and Aviation-Sector Certainty
The record supports continued FCC coordination with the Federal Aviation Administration (FAA) and other federal agencies as the Commission evaluates terrestrial use of the upper C-band. AT&T notes that “[m]aking this spectrum available within the congressionally mandated timeframe will be challenging, and as Chairman Carr notes, will require ‘extensive cooperation and information sharing between the wireless and aviation sectors.’”[26]
If the Commission seeks to maximize the value of upper C-band reallocation, additional deployment delays will undermine that objective. Delays create uncertainty about the scope of license rights. Without clear and reliable rights, bidders cannot value spectrum accurately, resources are misallocated, and licenses may not go to their highest-valued uses.
Delays also impose indirect costs. The lower C-band coordination process has already introduced uncertainty into spectrum planning. Repeating that experience in this proceeding would discourage investment and slow deployment even before operations begin.
Effective coordination with the FAA and other federal agencies is therefore essential to mitigate risk and establish predictable operating conditions. Successful coordination would also signal that prior interagency failures have been resolved and reduce future concerns about regulatory disruption of licensed spectrum use.
The process will also require substantial aviation-industry participation, which has already begun in this proceeding. Sustained collaboration will help establish clear operating expectations and provide the certainty necessary for both wireless and aviation stakeholders.
V. Conclusion
Making the upper C-band available for flexible use presents a significant opportunity to expand U.S. leadership in 5G and next-generation wireless services. To capture the full social and economic value of this spectrum, the Commission should prioritize efficiency, certainty, and rapid deployment over short-term revenue maximization or regulatory micromanagement.
The record points to a clear path. Harmonizing the upper and lower C-band service rules will reduce transaction costs, support wide, contiguous channels, and allow providers to leverage existing infrastructure investments and standardized equipment. Applying the emerging-technologies framework to reimburse incumbents and incentivize timely relocation will accelerate clearing and enable licensees to deploy service sooner. The Commission should likewise rely on market-based auction design and post-auction flexibility, rather than expanded bidding credits, to ensure spectrum flows to its highest-valued use.
Risk-based interference assessments and sustained coordination with the FAA and other stakeholders will further provide the regulatory certainty needed for investment, while allowing compatible uses to coexist. Taken together, these policies will create a predictable, high-capacity mid-band environment that speeds deployment, lowers costs, and enables the productivity gains and innovation that widespread advanced wireless connectivity makes possible.
[1] In the Matter of Upper C-band (3.98–4.2 GHz), Notice of Proposed Rulemaking, 47 C.F.R. pts. 1, 2, 25 & 27, GN Docket No. 25-59, FCC 25-78, 90 Fed. Reg. ___ (Dec. 5, 2025), https://www.federalregister.gov/documents/2025/12/05/2025-22020/in-the-matter-of-upper-c-band-398-42-ghz [hereinafter NPRM].
[2] See Reply Comments of the International Center for Law & Economics, Build America: Eliminating Barriers to Wireless Deployment, WT Docket No. 25-276 (Jan. 12, 2026), https://laweconcenter.org/wp-content/uploads/2026/01/Build-America-Wireless-infrastructure-Comments.pdf.
[3] See Comments of the International Center for Law & Economics, CTIA Petition for Rulemaking, RM-12003 (Apr. 30, 2025).
[4] Comments of Ericsson, Upper C-band (3.98 to 4.2 GHz), GN Docket No. 25-59, at 13 (Jan. 20, 2026), https://www.fcc.gov/ecfs/document/1012043306275/1; Comments of AT&T Services, Inc., Upper C-band (3.98 to 4.2 GHz), GN Docket No. 25-59 (Jan. 20, 2026), https://www.fcc.gov/ecfs/document/101201785127405/1.
[5] CTIA, Smarter and More Efficient: How America’s Wireless Industry Maximizes Its Spectrum 7 (2019), https://api.ctia.org/wp-content/uploads/2019/07/Spectrum_Efficiency.pdf.
[6] Haythem Banu Salameh, Marwan Krunz, & David Manzi, Spectrum Bonding and Aggregation with Guard-Band Awareness in Cognitive Radio Networks, 13 IEEE Trans. Mobile Comput. 569 (2014), https://doi.org/10.1109/tmc.2013.11.
[7] Signals Research Group, Paving the Way to 5G SA with Carrier Aggregation (Feb. 2023), https://www.nokia.com/asset/f/213121 (carrier aggregation can reduce device battery use in some cases by completing downloads faster despite higher current draw).
[8] Ericsson, What, Why and How: the Power of 5G Carrier Aggregation (2021), https://www.ericsson.com/en/blog/2021/6/what-why-how-5g-carrier-aggregation.
[9] Press Release, Samsung, Samsung Introduces Complete C-band Network Solutions Portfolio (Apr. 20, 2021), https://news.samsung.com/global/samsung-introduces-complete-C-band-network-solutions-portfolio.
[10] Hector Lopez & Julien Martin, The Economic Impact of Each Additional 100 MHz of Mid-band Spectrum for Mobile (prepared for CTIA, Jan. 22, 2025), https://api.ctia.org/wp-content/uploads/2025/01/The-economic-impact-of-allocating-mid-band-spectrum-to-mobile.pdf.
[11] Comments of WISPA, Upper C-band (3.98–4.2 GHz), GN Docket No. 25-59, at 5 (Jan. 20, 2026), https://www.fcc.gov/ecfs/document/101201162526102/1.
[12] See 47 C.F.R. § 101.1111.
[13] NPRM, supra note 1 at n. 2.
[14] Comments of NCTA – The Internet & Television Association, Upper C-band (3.98–4.2 GHz), GN Docket No. 25-59 (Jan. 20, 2026), https://www.fcc.gov/ecfs/document/10121058788895/1.
[15] Id. at 18–19. (transition requires planning, satellite construction and launch, technical upgrades, relocation, alternative-path deployment, testing, and decommissioning).
[16] WISPA, supra note 11, at 3.
[17] See Use of the 5.850–5.925 GHz Band, Report and Order, Further Notice of Proposed Rulemaking, and Order of Proposed Modification, 35 FCC Rcd. 13440, ET Docket No. 19-138 (Nov. 20, 2020), https://docs.fcc.gov/public/attachments/FCC-20-164A1.pdf (the Commission originally allocated the 5.9 GHz band to dedicated short-range communications (DSRC) for vehicle safety, expecting deployment, but the technology did not develop and the band was later repurposed in part for unlicensed use and in part for another standard).
[18] 47 U.S.C. § 309(j).
[19] 47 C.F.R. § 1.2110(f)(2)(i)(B)–(C).
[20] Spectrum and Receiver Performance Working Group of the Federal Communications Commission’s Technological Advisory Council, A Quick Introduction to Risk-Informed Interference Assessment (Apr. 1, 2015), https://transition.fcc.gov/bureaus/oet/tac/tacdocs/meeting4115/Intro-to-RIA-v100.pdf.
[21] Jean Pierre De Vries, Risk-Informed Interference Assessment: A Quantitative Basis for Spectrum Allocation Decisions, 41 Telecomm. Pol’y 434 (2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2792395.
[22] Id.
[23] Comments of Space Exploration Holdings, LLC, Upper C-band (3.98–4.2 GHz), GN Docket No. 25-59 (Jan. 20, 2026), https://www.fcc.gov/ecfs/document/10121052152521/1.
[24] Comments of Monisha Ghosh, Joshua Roy Palathinkal, Muhammad Rochman, & S. M. Haider Ali Shuvo, Upper C-band (3.98–4.2 GHz), GN Docket No. 25-59 (Jan. 21, 2026), https://www.fcc.gov/ecfs/document/10121176025934/1.
[25] Id. at 1-2.
[26] AT&T Services, Inc., supra note 4, at 9.