Competitive Carriers Challenge 5G Fund Order
FCC Chairman Brendan Carr, a commissioner at the time, dissented from the order when it was adopted last year.
Jake Neenan
WASHINGTON, Feb. 14, 2025 – A mobile carrier trade group is asking judges to toss out a planned $9 billion program to expand rural 5G coverage.
The Competitive Carriers Association, which represents regional and national wireless carriers, filed a petition for review in the D.C. Circuit on Feb. 6 challenging the Federal Communications Commission’s 5G Fund for Rural America. The group said, among other things, the speed threshold the agency used to determine eligibility was too low and that the entire program should be put on hold until another subsidy program is further along.
The Rural Wireless Association and another group of regional mobile providers have pending challenges to the fund at the agency level, filing petitions asking the FCC to reconsider its rules on largely the same grounds. Judges usually let legal challenges proceed after agency-level proceedings are resolved.
The order defining rules for the fund is “unsupported by substantial evidence because the Commission established a speed threshold for defining eligible areas based on an unsupported assumption that providers will upgrade to higher speeds in those areas absent financial support,” CCA wrote in its petition. Sean Lev, former FCC general counsel, is representing the group.
The agency adopted rules for the fund in August without setting a definitive timeline. It’s set to be a reverse auction in which carriers bid to serve areas with the lowest level of government support. CCA and other groups representing rural and regional mobile providers had pushed back on several provisions during the rulemaking process.
The maximum available speed threshold for eligibility is 7 Megabits per second (Mbps) download and 1 Mbps upload. The FCC argued in its 5G Fund order that setting the bar there would prevent government funds from building or upgrading networks in areas that might be set for upgrades anyway without any subsidy.
“We conclude that using a speed threshold of 7 * 1 Mbps for 5G for purposes of determining eligible areas will promote the expansion of 5G mobile broadband coverage at a speed threshold of at least 35 * 3 Mbps while avoiding the potential for overbuilding in areas where a provider already offers some level of unsubsidized 5G service (i.e., at 7 * 1 Mbps) and could upgrade to higher speeds in the future,” the agency wrote in the 5G Fund order.
A briefing schedule hasn’t yet been set.
FCC Chairman Brendan Carr dissented from the order when it was adopted, largely on the grounds that the agency should have waited until the $42.5 billion BEAD program was further along. That program is slated to fund fixed broadband, but Carr and the carriers argued mobile networks could make use of the fiber that is likely to be laid with BEAD money.
“Wireless carriers can stretch each 5G Fund dollar further – and rationally commit to offer mobile broadband service for less money – if they know where these BEAD funds are flowing, for what technology, and to what ISP,” Carr said in a statement at the time.
