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FCC Proposes Tough Love For 2.3 GHz Licensees

FCC suggests, seeks comments on, harsh new standards for WCS licensees

Of the many, many tasks which the FCC has set for itself in its National Broadband Plan (NBP), attentive readers may have noted one in particular. At page 86 of the NBP, the FCC committed to “accelerat[ing] efforts to ensure that WCS [Wireless Communications Service] spectrum is used productively for the benefit of all Americans.” We had to smile at the use of the word “accelerate” in this context since the FCC has been doing precisely nothing for the last 13 years to bring this spectrum to productive use.   In fact, in contravention of its own rules it has been sitting on applications for almost three years which could already have been providing innovative WCS service. The NBP is striking in that regard, since it repeatedly fails to acknowledge how the Commission’s own inaction and irresolution have often stymied, thwarted or delayed the very objectives which the FCC now claims to be so urgently needed.

Be that as it may, the FCC – while still leaving incumbent WCS licensees and new applicants in limbo – has now requested comment on some very rigorous build-out standards for the 2.3 GHz WCS service.  

Currently, licensees in this service need demonstrate only that they have provided “substantial service” at the end of their ten-year license term.  The term “substantial service” has not been defined with any specificity; instead, the Commission has invoked the ancient formula of “service which is sound, favorable and substantially above a level of mediocre service that just might minimally warrant renewal”. Still, the FCC did deign to identify a few reasonably delineated safe harbors that licensees could rely on: for mobile and point-to-point uses, service to 20% of the population would be deemed “substantial”; for fixed point-to-point uses, service to four links per million of population would do the trick.

But now, apparently determined to bring WCS spectrum to productive use, the FCC is proposing to swing 180 degrees from those relatively liberal build-out requirements and instead impose requirements that are among the harshest ever.

Specifically, the FCC is proposing that licensees engaging in point-to-point or mobile uses must cover 40% of their licensed population in 30 months and 75% of the population in 60 months.   Point-to-point users would have to have 15 links per million of population in 30 months, 30 links per million of population in 60 months, and minimum but unspecified payloads.  

To tighten the requirement even further, the FCC suggests that all the defined markets which comprise each licensed area might also have to have 25% coverage in 30 months/50% coverage in 60 months. This latter requirement would ensure that service be provided broadly over a licensee's entire licensed territory rather than clumping around major population centers.   The penalty for failure to achieve these goals: death, or its regulatory equivalent, forfeiture of the entire license.

The new suggested requirements are extremely aggressive, exceeding any build out requirement ever imposed for geographic licenses that cover large expanses – so much so that it’s not even clear that there’s enough WCS equipment in the whole world to meet these standards if the FCC were to adopt them tomorrow.   Nor would most rational business plans call for building out on a scale this vast with no existing ecosystem whatsoever of customers or content  to provide the demand for which this extraordinary construction project would be the supply. Nevertheless, the FCC has put this proceeding on a super-fast track, allowing only 15 days (to April 21) for comments and 10 days (to May 3) for replies. (The public notice made it into the Federal Register on April 6. The comment track was so fast that the deadline for initial comments has already passed – but there’s still time for replies.)

The regulatory train appears to be pulling out the station and, although it may be headed in the wrong direction, no one can say it isn’t accelerating.

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