Tomorrow, the Federal Communications Commission (FCC) will publish comment deadlines for its recently-released Notice of Proposed Rulemaking that begins the process of reviewing its policies regarding the allocation of mobile spectrum.   The full text of the Notice of Proposed Rulemaking is available here.  While the simultaneous adoption of proposed rules for an incentive auction of broadcast television spectrum arguably has attracted greater attention, this review of broader spectrum policy will have an important bearing on all future spectrum auctions and wireless transactions.

The FCC last reviewed its mobile spectrum holdings policies more than a decade ago, before the recent explosion of smartphones and tablets and the bandwidth-intensive services used on those devices by millions of Americans.  By assessing its rules now, the FCC hopes to provide clear and predictable “rules of the road” for this and other future auctions. Comments are due November 23, 2012, and reply comments are due December 24, 2012.

The FCC seeks comments on a range of issues, including its process for evaluating proposed wireless transactions.  Currently, the FCC conducts a case-by-case analysis, considering factors like the relevant product and geographic markets, the acquiring company’s existing spectrum holdings, and possible local and nationwide harms ― guided in part by a soft spectrum “screen” to identify the markets, if any, in which a transaction is most likely to raise competitive concerns.  The FCC asks whether this totality-of-the-circumstances approach remains appropriate or whether it should adopt another approach–such as creating bright-line limits on spectrum holdings–that could increase predictability, cut down on the time and cost of evaluating transactions, yet preserve flexibility in considering extenuating circumstances.  This line of inquiry has raised concern among Republican Commissioners Pai and McDowell that the FCC will re-impose the hard spectrum “caps” that were sunset almost 10 years ago.

Other issues on which the FCC is seeking comment include whether the product market definition for “mobile telephony/broadband services” should be divided into smaller, more discrete categories; whether to change the current market-share threshold it uses to trigger further competitive analysis of spectrum transactions; and whether to distinguish among different bands in assessing a company’s spectrum holdings (e.g., by attaching greater weight to spectrum below 1 GHz).