Mixed Signals Might Cloud 5G’s Reception

Tom Wheeler, former chairman of the Federal Communications Commission (FCC), stated in 2016 that a successful rollout of the next generation of cellular networks known as 5G is “a national priority.” More recently, the World Economic Forum’s CP Gurnani wrote that 5G implementation will “revolutionize the world.”

The allure of 5G has led to an international innovation race that some analysts suggest “could have more far-reaching effects than the race to the moon.”

Proponents claim that the benefits of 5G include wireless networks that are 100 times faster than 4G internet service. Faster speed and reduced latency between connected devices could usher in the “Internet of Things” world, connecting everything from toothbrushes to toasters. Transformative new technology could establish “smart cities” with self-driving cars and automated factories.

Health care experts argue that 5G would enable robots to perform remote surgery, ambulances to relay vital information to medical professionals in real-time, and people to “monitor and manage their illnesses” through wearable devices.

But at the same time that some observers hail 5G technology as the beginning of the fourth industrial revolution, others have expressed concerns. A vocal opposition has sowed fears that 5G may cause brain cancer and neurobehavioral issues, even though mainstream scientists have repeatedly debunked these concerns about health risks. More recently, a wave of arsonists motivated by misinformation razed 5G towers out of fear that 5G is the source of the coronavirus pandemic.

5G does present some serious national security concerns. Chinese companies, working closely with Beijing, reportedly could create 5G equipment used in America that siphons “off sensitive personal or corporate data” with hidden kill switches that could “cripple Western telecom systems during an active war.” Critics argue that the Trump Administration lacks the “leadership and interagency coordination” needed to address these concerns.

In 2018, the FCC issued an order designed to fast-track American 5G implementation. But many cities and states have spurned the FCC rules, resulting in lawsuits. Some reporters assert that the FCC’s aggressive push for 5G tramples on municipal rights and negatively affects the health, aesthetics, and property values of local communities. Others say that Congress and the Administration should do more to fulfill the future of 5G.

This Saturday Seminar explores how current regulatory frameworks will handle 5G—including potential gaps that policymakers may need to address.

• As new 5G technology emerges, legislators find themselves needing to evaluate whether existing legal frameworks would maximize the societal benefits from the network. In a working paper for the James H. and Mary B. Quello Center, Johannes M. Bauer of Michigan State University and Erik Bohlin of Chalmers University of Technology discuss the strengths, weaknesses, and foundations of current and alternative 5G regulatory policies. By examining how regulation influences the deployment of 5G innovation and growth, they rely on a research framework that “considers the strong complementarities between networks, applications, and services explicitly.” Because of the dynamic nature of 5G services, Bauer and Bohlin argue that regulation that aims to reduce market power could result in a 5G market design that cannot deliver the technology’s full potential.
• Judicial and administrative regulations pose a risk to mobile telecommunications as the industry reconciles with 5G, argues Northwestern University Pritzker School of Law’s Daniel F. Spulber in a recent article in the Colorado Technology Law Journal. The lead up to the 5G standard has put a spotlight on setting industry standards and negotiating licensing contracts for standard essential patents (SEPs), according to Spulber. These processes have promoted “invention and innovation” in mobile telecommunications, he argues. Public policy makers interfering with SEPs could bring about unintended consequences, and Spulber warns that agency and court regulations would “reduce standardization, impede innovation, and constrain market negotiation of patent license agreements.” Courts should avoid “one-size-fits-all” solutions to 5G and should limit the scope of decisions to the specific case at hand, he argues.
• Typically, patent owners participating in standards organizations agree to license their technology on non-discriminatory terms. In a paper published in the Notre Dame Law Review Online, lawyer Eli Greenbaum analyzes budding problems related to non-discrimination patent requirements for 5G technology. As 5G technology is deployed, Greenbaum predicts that regulators will face novel issues on how to apply the non-discrimination requirement to widespread technologies in diverse settings. Greenbaum claims that determining whether the non-discrimination requirement would prevent patent holders from charging differential royalties based on how the technology is used will be a key issue for 5G patents. Greenbaum argues that regulators need to balance the interests of contributors to intellectual property standards—who prefer lower non-discrimination standards—with the interests of producers of goods, who implement and prefer higher non-discrimination standards.
• Successful 5G systems must incorporate new business models that can organize resources differently than prior networks have, argue Christopher Yoo and Jesse Lambert of the University of Pennsylvania Law School in a recent working paper. They explain that some industry observers are concerned that the European Union’s (EU) approach to network neutrality could hinder these new business models because the EU’s Telecoms Single Market (TSM) Regulation requires that internet providers “treat all traffic equally.” Yoo and Lambert claim, however, that new 5G business models will treat users differently based on differences in demand, sometimes disadvantaging certain users. They conclude that how broadly regulators interpret exceptions for reasonable network management and specialized services in the TSM Regulation will determine the impact of network neutrality on 5G.
• “Although the U.S. was the undisputed leader in 4G technology,” China is now the “primary supplier of 5G networking equipment,” writes Oklahoma State University’s Kimberly Houser in a forthcoming paper in the San Diego Law Review. Framing 5G within the context of the larger trade war between the two powers, she argues that the Chinese government’s massive investment in 5G could lead to a “bifurcated internet” where the rest of the world must choose a side. Houser points to the 2018 Foreign Investment Risk Review Modernization Act (FIRRMA) as a key failed regulatory feature exacerbating geopolitical tensions and hindering 5G implementation. She writes that FIRRMA has “vastly restricted Chinese investment” in American tech companies and will hinder the flow of Chinese technology back into the U.S.
• Land use restrictions will likely not impede the United States’ 5G rollout, Benjamin W. Cramer of Penn State University argues in a working paper. Cramer contends that 5G infrastructure will be a “fundamentally different architecture” because 5G will require equipment that is smaller, less-centralized, and located closer together than 4G. The FCC has “set up a legal framework” to prevent state and local land use restrictions from hampering construction of the “much more intrusive” 5G infrastructure, Cramer argues. According to a 2019 declaratory ruling by the FCC, he explains, the Telecommunications Act can preempt “all or most land use restrictions that may slow down the rollout.”