OTI-WiFu reply comments defending unlicensed spectrum against LTE-U services

The Open Technology Institute at New America, Public Knowledge, Free Press, and Common Cause submit reply comments in the matter of Office of Engineering and Technology and Wireless Telecommunications Bureau Seek Information on Current Trends in LTE-U and LAA Technology (ET Docket No. 15-105)

Click here to download the full comments as a PDF. 

The Open Technology Institute at New America, Public Knowledge, Free Press and Common Cause (collectively the “Public Interest Organizations”) submit these Reply Comments in response to the Commission’s Public Notice in the proceeding referenced above.

The Public Interest Organizations commend the Commission for this effort to understand the potential consequences of the use and control of unlicensed spectrum as ancillary to a license-anchored carrier network. Two of our organizations previously filed ex parte letters in the 3.5 GHz proceeding, expressing concerns about the potential adverse impact of LTE-Unlicensed/Licensed Assisted Access (LTE-U/LAA) on consumers using Wi-Fi as well as the obvious incentives for anti-competitive behavior inherent in a technology designed to rely on a control channel anchored in expensive licensed spectrum. Accordingly, our groups file these Reply Comments to help inform the Commission as it considers what steps are needed to ensure that all technologies and users have fair access to the nation’s unlicensed spectrum commons.

I. Introduction and Summary

The large and rapidly rising increase in consumer benefit from wireless broadband Internet access in the U.S. has rested on the separate but complementary roles of access to licensed and unlicensed spectrum. The use of Wi-Fi to offload a majority of mobile device traffic has ushered in a revolution in efficient small cell spectrum re-use. Coexistence features appropriate to a shared spectrum commons have led to worldwide Wi-Fi standards that promote spectrum re-use, open entry, decentralized investment, innovation and competition. Economic studies estimate Wi-Fi’s value to the U.S. economy exceeds $200 billion annually. To keep this engine of consumer welfare growing, it would be wise to observe the regulatory version of the Hippocratic Oath: first, do no harm to the commons.

Coexistence and fair-sharing standards are built into Wi-Fi’s DNA – and without them it would not be such a boon to consumers and the economy. Although these features impose an “overhead” cost on Wi-Fi throughput, this is more than offset by the fact that at low power many different users can coexist and occupy the same frequencies in a relatively small area – and without the need for centralized coordination or control. This “connectivity without permission” is a key ingredient in Wi-Fi’s success in spurring both innovation and widespread deployment by individuals and business establishments at the end points of the Internet.

In contrast, LTE-U/LAA is designed to be centrally controlled by a network anchored in a separate, exclusively-licensed frequency band. 3GPP, the mobile industry standards body, may ultimately design LAA in a manner that shares fairly with Wi-Fi and other unlicensed technologies; yet several studies filed by commenters demonstrate that the version of LTE-U that U.S. carriers plan to deploy by next year coexists poorly with Wi-Fi, degrading both throughput and latency (delay). OTI and PK agree with a number of other comments concluding that fair coexistence will be possible only if LAA implements Listen Before Talk (LBT) effectively, ideally through a consensus process with IEEE 802.11. Unfortunately, the 3GPP standard-setting process does not appear to be on a course toward fair coexistence.

The Public Interest Organizations are particularly concerned that mobile carriers will have both the ability and strong incentives to use LTE-U and LAA to engage in anti-competitive behavior harmful to consumers, while for the first time being able to charge consumers for the use of unlicensed spectrum. Carriers also have powerful incentives to use LTE-U to deter mobile market entry by “Wi-Fi First” providers, such as wireline ISPs. Carriers deploying LTE-U will have the apparent option to adjust their access points to introduce just enough latency to frustrate consumer use of real-time applications, such as video calling. This anti-competitive counterattack against Wi-Fi as a carrier substitute is particularly acute and immediate with respect to LTE-U. Moreover, mobile carriers deploying LTE-U and LAA operators will entirely avoid the ill-effects of any resulting poor coexistence on unlicensed bands, since they can shift their users and traffic at will to their exclusive, licensed spectrum.

The Public Interest Organizations are also concerned that both LTE-U and LAA are designed to be centrally controlled by a network anchored in a separate, exclusively-licensed frequency band. LTE-U and LAA are radically different from any current unlicensed technology, all of which operate wholly in unlicensed spectrum on a standalone basis. If, as a result, access to licensed frequencies becomes a de facto prerequisite for successful use of unlicensed spectrum, such an outcome would not only foreclose competition from “Wi-Fi First” market entrants, but could also foreclose the ability of many individual firms, retail outlets, municipalities, schools, libraries, community groups and even some individual homeowners and apartment dwellers to “disintermediate” the wireless industry owners holding exclusive government licenses for mobile spectrum. “Connectivity without permission” – the hallmark of the Wi-Fi revolution – could be snuffed out if the Commission effectively concurs in giving license-anchored carrier networks superior rights to occupy and exclude others from fair use of unlicensed spectrum wherever it best serves such licensees’ business strategy.

The Public Interest Organizations further observe that Qualcomm has strong patent licensing incentives to promote licensed carrier-based unlicensed technologies in a manner that crowds out or disadvantages Wi-Fi deployments. A major patent-holding company like Qualcomm stands to make more licensing revenues, block more competitors, and monopolize more strongly a field based on a standard promulgated by 3GPP than one based on a standard promulgated by IEEE. Patent licensing thus creates an incentive for pushing for greater adoption of LAA, and inhibiting use of Wi-Fi, the IEEE standard. Indeed, Qualcomm has already declared that it is pulling itself out of the Wi-Fi standard-setting process in view of IEEE’s amended patent policy, saying that it “will not make licensing commitments under the new policy.”

The Public Interest Organizations support the recommendations suggested by NCTA, which urge the Commission to: (1) convene a meeting of the Chief of the Office of Engineering and Technology and a representative group of licensed carriers and the unlicensed community to initiate a process to establish effective sharing mechanisms; (2) establish a working group composed of Commission staff and engineers from interested parties to carry forth this work after this initial meeting in weekly meetings; (3) seek monthly status reports from IEEE and 3GPP on the progress of coordination between these bodies on establishing effective sharing; and (4) ensure that licensees do not launch non-standard versions of LTE-U until these processes have been completed to the Commission’s satisfaction. The Public Interest Organizations further recommend that the Commission also consider, as part of this collaborative process, seeking agreement among the parties for public and transparent testing first of LTE-U and later LAA equipment under a variety of Wi-Fi deployment scenarios, as well as in conjunction with deployment of Bluetooth and other unlicensed technologies.

The Commission has adopted strong rules to preserve and nurture the Internet’s core value of “innovation without permission.” It likewise should preserve the collaborative culture of “connectivity without permission” on the open and shared unlicensed bands that have proved so valuable for innovation, free speech and the U.S. economy. The slogan “technological neutrality” must not become a glib rationale for technology designed to make control of licensed frequencies a de facto prerequisite for successful use of the unlicensed spectrum where license-anchored services operate.