CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Pleading asks full Commission to reverse decision of three bureaus.

We reported in May that three of the FCC’s bureaus turned down, after five years, a Petition for Rulemaking from the Utilities Telecom Council and Winchester Cator, LLC that asked the FCC to open the 14.0-14.5 GHz band for terrestrial point-to-point and point-to-multipoint critical infrastructure communications. It is probably not a coincidence that the FCC, just a few days before the rejection, had proposed use of this same band for air-ground broadband systems to facilitate Internet service for airplane passengers.

UTC and Winchester Cator have now filed an Application for Review asking the full Commission to reverse the bureaus’ decision. Comments are due on July 1, 2013 and reply comments on July 11.

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Reply comments in the proceeding on 5 GHz unlicensed operation are now due July 24.

In February we reported on an FCC proposal that would not only add new 5 GHz frequencies but also overhaul – maybe even simplify – a confusing stretch of the rules. One possible upshot would be the opening up of 195 MHz of spectrum for Wi-Fi-type operation.

Comments were filed on May 28. The FCC has extended the date for reply comments, originally June 24, to July 24.

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A Supreme Court case offers a possible route to appealing a forfeiture without having to pay it first.

A pair of California raisin farmers might have made it easier to challenge an FCC forfeiture.

A party dinged with a forfeiture that it thinks is unfair now has two options under the Communications Act. One is to challenge the forfeiture order directly in the Court of Appeals. The problem with that approach is that, as a condition to getting into the Court of Appeals, the challenger must first pay the forfeiture. Since forfeitures can reach up into six and seven figures and, let’s face it, not everyone has that much spare cash lying around, that condition poses a serious disincentive to direct appeals.

The other option is to not pay the forfeiture and wait for the FCC (assisted by their friends from the Department of Justice) to bring suit in your nearest federal District Court. In that case, the burden is on the government to prove that you are in fact really liable for the forfeiture, which gives you an arguable advantage going in. But at least one appellate court has held that a party choosing this option is not allowed to raise the full panoply of defenses that might normally be available in challenging the forfeiture.

What does this have to do with raisins?

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Three petitions seek minor adjustments to rules.

The FCC’s order from last January expanding the scope of experimental licenses has drawn three petitions for reconsideration. Considering the broad reach of the order, the fact that only three were filed is a testament to the FCC’s foresight.

Sirius XM Radio and EchoStar Technologies, which provide satellite services to the public, seek a clarification and expansion of the term “emergency notifications,” the bands for which receive special protection from experimental licensees.

Medtronic, Inc., which develops medical devices, wants expanded eligibility for Medical Testing Experimental Radio Licenses to include all sponsors and sponsor-investigators as defined by the FDA, and requests a clarification that cost reimbursement for clinical trials is not a violation of the equipment marketing rules.

Our friend Michael Marcus of Marcus Spectrum Solutions LLC wants the “passive bands,” including those used for radio astronomy, made available to experimental licensees at frequencies above 100 GHz.

The FCC has put these on public notice. Comment due dates must await publication in the Federal Register. Watch this space.

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Last month we reported on an FCC decision to allow the use of Auditory Assistance Devices for simultaneous language translation. That decision – which involved some technical rule changes as well as the expansion of permissible uses to include translation – has now been published in the Federal Register, which means that the effective date of the new rules has been established. That effective date is July 11, 2013.  Use of 72-76 MHz band devices for language translation will be permitted as of that date.  The technical rule changes -- which require compliance with tighter out-of-band emission limits -- will apply to new equipment certification applications filed on or after January 11, 2015, and to importation, marketing and installation on or after July 11, 2016.

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Last month we noted that the FCC (through its Office of Engineering and Technology) had requested comment on a white paper concerning technical standards for radio receivers, produced by its Technological Advisory Committee and entitled “Interference Limits Policy: The use of harm claim thresholds to improve the interference tolerance of wireless systems.” The basic idea is to add flexibility to the notion of “interference” from a nearby band.

The questions posed in the white paper are a matter of potentially major consequence. Probably because of that, three entities that have occasionally found themselves at odds on a number of substantive regulatory issues found common ground here, at least with respect to the need for more time to respond to the FCC’s invitation for comments: the National Association of Broadcasters, the Consumer Electronics Association, and the GPS Innovation Alliance filed a joint request for more time. 

That request has been granted. As a result, comments are now due by July 22, 2013 and reply comments by August 7.

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Location service company is deemed to have satisfied the requirement that it not cause unacceptable interference to unlicensed devices.

The FCC has authorized Progeny LMS, LLC to begin commercial operation of its Location and Monitoring Service (LMS) network. Progeny’s system uses part of the 902-928 MHz band, which is heavily occupied by unlicensed devices regulated under Part 15 of the FCC rules. The FCC action came over vigorous objection from the companies that make and use Part 15 equipment.

“So what?” knowledgeable readers will ask. After all, unlicensed devices always have to accept interference from licensed services like LMS.

Not quite always. When the FCC authorized LMS back in 1995, the 902-928 MHz band was already home to a very large array of unlicensed devices serving both consumers and industry. (Their number, variety, and importance have increased many-fold in the years since.) To ensure that LMS did not obliterate unlicensed usage, the FCC adopted a unique rule: certain LMS licenses are “conditioned upon the licensee’s ability to demonstrate through actual field tests that their systems do not cause unacceptable levels of interference to [Part 15] devices.”

Fast forward to 2011, when LMS licensee Progeny requested and was granted a waiver that permitted one-way service and the location of assets other than vehicles. The waiver grant re-triggered the field testing requirement. Progeny conducted four sets of tests and submitted the results to the FCC, which then duly requested comments about the results. Providers of unlicensed wireless Internet service and manufacturers of unlicensed automatic meter reading equipment – both of which require reliable operation – challenged the conclusions. They claimed the tests used too few unlicensed devices, non-representative devices, and conditions artificially rigged to understate interference.

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Back in April we reported on the FCC’s most recent foray into the thorny issue of health effects of radio waves. The FCC adopted minor tweaks to its existing rules, proposed further tweaks, and sought comments on broader issues, including the controversial question of whether the current radio-frequency exposure limits are safe, and if not, what they should be.

The document has now been published in the Federal Register, in two separate parts. The first part sets out the newly adopted rules; the second part poses the questions on which the Commission has requested comment.

Publication in the Federal Register establishes both (a) the effective date of the rule changes that were adopted and (b) the deadlines for comments on the out-for-comment questions. The adopted changes will become effective on August 5, 2013. Comments will be due on September 3, 2013, and reply comments on November 1.

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The task of ascertaining eligibility is sufficiently complex that the FCC would rather start fresh with an application for a new license.

Last February, when the FCC overhauled its rules to create new kinds of experimental licenses, it omitted mention of whether the licenses could be transferred to another party, as by assignment or transfer of control. Now the FCC has spoken. The answer is no.

The February order set up three new categories:

• "program experimental licenses" for certain colleges and universities, research laboratories, manufacturers, and health care institutions;
• "compliance testing licenses" for FCC-recognized test labs; and
• "medical testing licenses" for health care facilities conducting clinical trials of wireless medical technologies.

Each of these categories has its own stringent standards for eligibility. None has yet taken effect, pending approval by the Office of Management and Budget. (The FCC left unchanged the current species of experimental license, which is available to pretty much anyone.)

The FCC has now decided that licenses in the three new categories may not be assigned or transferred. The task of ascertaining eligibility is sufficiently complex that the FCC would rather start fresh with an application for a new license.

The ruling sets up a potentially deadly trap for companies that acquire others, or that transfer technology-related assets. Ordinarily the two companies’ lawyers go through a well-worn routine of filing requests to assign or transfer two-way radio licenses, FCC certifications, and various other commonplace authorizations. (Transactions involving broadcast, satellite, and some wireless licenses are more complex.) Now, though the acquiring company may have to take on the additional step of applying anew for its own program experimental, compliance testing, or medical testing license. Processing at the FCC may take time. Worse, we can foresee situations in which the acquiring company may not qualify for the license.

Our best advice: plan ahead.

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Special CDBS website unveiled as FCC tries to help rebroadcasting low power stations secure the protection to which they’re entitled.

If you’re the licensee of an LPTV or a TV Translator or a Class A TV station – collectively for our purposes here, “low power stations” – that rebroadcasts the over-the-air signal of another station, the FCC’s trying to help you out.   In the near future, TV white space devices will take to the air, creating a potential source of interference to your ability to receive the signals you rebroadcast. As the FCC proceeds with tests of databases to control those white space devices, it has simplified the steps necessary to ensure the protection to which you are entitled from those devices.

White space devices, as we hope you know by now, operate in locally vacant TV channels. They are required to protect not only household TV reception but also various other facilities, including some (but not all) low power stations that rebroadcast the signals of other TV stations. These stations receive two kinds of protection. White space devices (except for those at very low power) are not permitted to operate inside or close to the stations’ service contours – a matter not at issue here. Also protected, and the subject of this post, are the receivers these stations use to pick up the signal of the originating station for rebroadcast.

White space devices will have to consult a special database to identify available channels. That database in turn will draw on CDBS to identify low-power stations whose receivers are entitled to protection.

A public notice announces a special web page at which qualifying stations can register their receiver channels into the FCC’s CDBS system.

For protection purposes, low power stations fall into one of three distinct situations:

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The FCC requests comment on white space database tests recently conducted by Google, Inc. and Key Bridge Global LLC.

In separate public notices, the FCC has asked for comment on white space database tests recently conducted by Google, Inc. and Key Bridge Global LLC. (The FCC paperwork misidentifies the second company as "Keybridge Global Inc.") Their respective test reports are here and here. Mark your scorecards: once approved, these will be database managers numbers 3 and 4.

Prior CommLawBlog entries on these tests are here and here.

Comments on both tests are due on June 13, 2013 and reply comments in June 20.

For background on the databases and what they do, see this article.

[Blogmeister’s Note: In keeping with the practice we introduced with our last white space database post, we have sought to capture the essence of these recent developments poetically:

An FCC Haiku to the Public

Key Bridge and Google
filed database test reports.
Comments?  We’re all ears.]

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Proposals for satellite and space operations call for new commingling of spectrum operations.

This Notice of Proposed Rulemaking (NPRM) looks to alter the way in which certain spectrum is to be shared between the government and private users.  At first glance it is about as tedious and picky as anything coming out of the FCC. But it may signal the beginning of the end of a basic tenet of U.S. spectrum management.

Radio spectrum is allocated separately for federal and non-federal use. Take a look at the official Table of Frequency Allocations (or type a frequency into this unofficial but easier-to-use version). Notice the separate federal and non-federal entries. Federal spectrum is regulated by the National Telecommunications and Information Administration (NTIA) through its Office of Spectrum Management. Non-federal spectrum, also called “private” or “commercial,” comes under the jurisdiction of the FCC. To be sure, some spectrum is allocated jointly for federal and private use, regulated by the two agencies acting cooperatively. But even then, NTIA manages federal users operating federal equipment, while the FCC oversees private users working with private equipment.

The federal-private distinction, basic to the statutory scheme of U.S. communications law, has worked successfully for decades. Now, though, it is starting to come unglued.

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Rulemaking petition denied on grounds relating to auction, interference and frequency coordination.

The Wireless and International Bureaus and the Office of Engineering and Technology (Bureaus) have denied a 2008 petition by the Utilities Telecom Council and Winchester Cator, LLC that asked the Commission to open the 14.0-14.5 GHz band for terrestrial point-to-point and point-to-multipoint communications. The requested allocation would have served critical infrastructure industries, including electric utilities and emergency responders. Other services would have been permitted on a preemptible basis.

The Bureaus disagreed with the petition’s argument that the band could be licensed without an auction. They also had concerns about interference into fixed satellite uplinks, which are primary in the band, and expressed doubts as to whether the proposed single-entity frequency coordinator could identify and resolve any interference issues that occurred. The Bureaus pointed out many bands the utilities industry could use instead, and also noted its access to “an extensive physical network” that could support wired infrastructure.

Based on these considerations, the Bureaus concluded that the petition “plainly [does] not warrant consideration by the Commission.” That strikes us as little harsh. Had the Bureaus wanted to move forward, they plausibly could have raised each objection instead as a question in a Notice of Proposed Rulemaking.

Not mentioned in the turn-down is another possible reason for its issuance: a recently proposed use of this same band for air-ground broadband systems to facilitate Internet service for airplane passengers. We mentioned earlier that the air-ground proposal could put the kibosh on critical infrastructure communications. Perhaps the FCC judged that the two systems could not coexist, and has now made its choice between them.

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Request reopens matter laid to rest just six years ago.

The FCC has reopened the difficult question of technical standards for radio receivers.

Everyone agrees that poor receivers impair efficient use of spectrum. In particular, receivers that respond to a wider swath of frequencies than necessary can receive interference from unwanted signals close by the intended signal. Just ask LightSquared, whose plans to use mobile satellite frequencies on terrestrial towers failed because its signal was close enough to GPS frequencies to overpower some GPS receivers.

Less selective, more interference-prone receivers are cheaper to manufacture. Market forces are not much help because a more selective (and hence more expensive) receiver is rarely of immediate benefit to the purchaser. The improved receiver does benefit other users seeking to operate on frequencies nearby, as better GPS receivers would have benefited LightSquared. But the manufacturer gains no competitive advantage to offset the higher price. So manufacturers, especially of consumer equipment, tend to supply the least selective (and least expensive) receivers that will work in the current spectrum environment.

A situation like this, where market forces act against the public good, is a classic set-up for regulation.

The FCC tried. Just over ten years ago it issued a Notice of Inquiry on whether to include “receiver interference immunity performance specifications” in its rules. After sifting through sixty-odd comments, and then waiting a few years, the FCC terminated the proceeding in a terse one-pager.

Now the issue is back.

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Definition of  “Auditory Assistance Device” expanded to permit equipment for language translation.

Back in September of 2011, we posted about a proposed change to the FCC’s rules to allow the use of unlicensed auditory assistance devices  (AADs) for simultaneous language translation. The FCC has now implemented that change, and more.

AADs allow hard-of-hearing people to participate in events together with people with normal hearing in settings like classrooms, theaters, and houses of worship. A low-power radio transmitter sends sound to the user’s receiver, which amplifies the sound and delivers it to headphones without disturbing non-users in the room. Sound quality is much better than with a conventional hearing aid because the microphone is closer to the source. In some venues, AADs are required by disability laws. Personal systems are also permitted for those who want and can afford them.

AADs operate in the 72-76 MHz band under Part 15 of the Commission’s rules, which means they do not need an FCC license. The relevant definition has heretofore limited them to applications for providing auditory assistance to “handicapped persons.” But no longer.

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In February we reported on the Commission’s Notice of Proposed Rulemaking looking to revamp its equipment certification process. That notice has now hit the Federal Register. As a result, we now have the deadlines for comments and reply comments in response to the notice. Comments are due by June 17, 2013, and replies by July 17.

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A couple of months ago we reported on the FCC’s overhaul of its experimental radio rules. The Report and Order detailing that overhaul has now appeared in the Federal Register, which means that many, but not all, of the new rules will take effect on May 29, 2013. As indicated in our initial post, though, a bunch of the new rules involve “information collections” which will have to be run past the Office of Management and Budget for its approval before they can take effect. (Which sections are OMB-bound? Many of the ones that really matter: Sections 2.803(c)(2), 5.59, 5.61, 5.63, 5.64, 5.65, 5.73, 5.79, 5.81, 5.107, 5.115, 5.121, 5.123, 5.205, 5.207, 5.217(b), 5.307, 5.308, 5.309, 5.311, 5.404, 5.405, 5.406, 5.504, and 5.602.) OMB approval usually takes a few months. Check back here for updates.

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Non-radio device causes interference to amateur radio communications.

The FCC has cited the owner of a “well pump” for causing harmful interference to radio communications.

Wait – a well pump? A machine that brings up water from a well? What makes the FCC think it has jurisdiction over pumps? Next, they’ll be regulating the bathroom fixtures.

The truth is, some of the greatest interference threats to radio communications come not from radio equipment, but from electrical devices such as elevator motors, photocopy machines, vehicle ignitions, and even fluorescent lighting. The FCC closely regulates radio transmitters and digital devices to limit the interference they can cause. You would think the FCC would also regulate the more important sources of interference.

It turns out they do. Just not very often.

The FCC rules lay out three categories of unlicensed devices: 

• “intentional radiators,” which intentionally generate and emit radio signals – the things most people call “transmitters”;

• “unintentional radiators,” which intentionally generate radio-frequency energy for use within the device, but do not intentionally emit that energy – including all digital devices and most kinds of receivers; and

• of interest here, “incidental radiators,” which generate and emit radio-frequency energy, although not intended to do either – such as the examples listed above.

This last category is subject to two FCC rules. One requires manufacturers to use “good engineering practices” to minimize the risk of causing harmful interference to radio communications. This rule is widely ignored. The other rule says that operation of any unlicensed device, including an incidental radiator, may not cause harmful interference to an authorized radio service. As to incidental radiators, this rule is also widely ignored. Just ask Ruben D. Lopez, Jr. of Pomona Park, FL, who ignored it at his peril.

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New order ends long-running FCC proceeding – we think.

The FCC has denied ARRL’s request for reconsideration of the Broadband-over-Power-Line (BPL) rules.

We can hear you asking, “What, again?”

ARRL, the national association for Amateur Radio, has opposed BPL since its inception ten years ago. The FCC has ruled against ARRL and for BPL at every opportunity.

As you might expect from the name, BPL is a technology for moving broadband signals over electric power lines. Its operation entails putting radio-frequency signals on the overhead or underground wires that deliver electric service. Some of that energy leaks off the overhead wires, or connections to underground wires, in the form of radio waves. Depending on the BPL provider, some of the leaked energy may fall in the amateur radio bands. The amateurs claim this leakage has the potential to cause massive, city-wide interference of amateur communications. BPL providers counter that conditions the FCC has imposed on BPL, unprecedented elsewhere in the FCC rules, are more than adequate to protect amateur radio against any realistic risk of interference.

The FCC has consistently refused to impose the condition the amateur want most: a requirement that BPL providers “notch,” or turn down, the power by a factor of 300 in all of the amateur bands, all of the time.

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In February we reported on an FCC proposal that would not only add new 5 GHz frequencies but also overhaul – maybe even simplify – a particularly confusing stretch of the rules. One possible upshot would be the opening up of 195 MHz of spectrum for Wi-Fi-type operation.

The Notice of Proposed Rulemaking (NPRM) has now been published in the Federal Register which, as our regular readers know, establishes the relevant filing deadlines. Comments in response to the NPRM are due to be filed by May 28, 2013, and replies by June 24.

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In June of last year, we reported that the FCC had decided to begin using five-character “grantee codes” in connection with its equipment certifications. (The problem was that the Commission was running out of the three-character codes it had historically used.) It took a couple of months for that decision to become technically “effective”. And, apparently, it has taken yet another eight months actually to implement the new format.

We know that because the Commission’s Office of Engineering and Technology, which is in charge of the equipment certification program, has announced that it’s going to start issuing five-character grantee codes as of May 1, 2013. From that date on, grantee codes – also known as FCC identifiers or FCC ID’s – will consist of “an Arabic numeral between two and nine followed by four alphanumeric characters (capital letters or Arabic numerals between two and nine).” Check out our post from last June for more information.

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In a Notice of Inquiry, the FCC proposes to reopen the controversial question of radiofrequency exposure limits.

Do cell phones cause cancer?

Those on both sides of the question will carefully parse the FCC’s 201-page “First Report and Order, Further Notice of Proposed Rule Making and Notice Of Inquiry,” as the agency wades again into one of its murkiest controversies: what effect do radio waves have on health?

The FCC has had rules limiting RF (radiofrequency) exposure for decades. Other bodies recommend numerical exposure limits that being outside the FCC’s expertise. The FCC nevertheless decides which recommendations to adopt, what kinds of transmitters must be tested for compliance, and how those tests are to be carried out.

The proper limits for safe exposure are a matter of considerable debate – a debate that helped to prompt the FCC’s current action. The question is controversial in part because of disagreement over how radio waves affect bodily tissue.

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The Media Bureau is back! Did YOU miss it? WE did.

Looks like the successful hack of the FCC’s computer network in September, 2011 – which we reported on back in February – may have been more intrusive than the government has let on so far. In an unusual public notice, the FCC has acknowledged that the entire Media Bureau apparently went missing sometime in the late summer/early fall of 2011. The agency’s internal computer records reflect that, as of October 1, 2011, all traces of the Media Bureau – historically one of the hardest working and most productive operations within the agency – had been purged from all Commission systems.

As a result, there have been no references to the Bureau on the FCC’s website for the last 18 months or so. The disappearance was apparently not noticed by visitors to the website. We’re guessing that that’s because, thanks to the redesign of the site, those seeking the Media Bureau pages generally gave up in frustration, assuming that the Bureau’s pages (a) were there somewhere, but (b) had been buried so deeply behind various blogs, dashboards, consumer notices and other higher priority matters that they could not, as a practical matter, be located through routine search techniques. (Vestigial cached versions of Bureau materials, including some CDBS records, apparently remained accessible from some computers external to the FCC’s systems, creating the comfortable illusion within the private sector that all systems were still go and things were still Business As Usual within the Bureau.)

While the Commission’s notice stops short of explaining exactly what happened, there’s plenty of solid information from which we might cobble together a reasonable theory.

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Next up is Key Bridge Global LLC.

Add Key Bridge Global LLC to the list of TV “white space” database coordinators ready for testing. White space systems, we all know, operate in locally vacant TV spectrum; most must consult a database of other users to avoid causing interference. Of the ten FCC-approved coordinators eligible to provide access to the database, Spectrum Bridge, Inc. and Telcordia Technologies, Inc. have successfully completed their tests and are authorized to support white space devices nationwide, while Google and now Key Bridge Global are in the test preparation phase.

We will keep on keeping track.

[Blogmeister’s Note: As much as we here at CommLawBlog enjoy keeping everybody up-to-date on doings at the FCC, there are limits. Since the FCC started implementing its white space database coordination process, we’ve reported on the appointments of nine -- and then a tenth -- database administrators, three test launches, two requests for public comment on test results, and two final approvals. This post marks the fourth test launch. They are all starting to look the same.

We’re happy to keep reporting as we have done but, frankly, the repetition gets a bit tedious. So we offer here an alternative approach: limericks! 

Here are some examples. We encourage our readers to try their hand, too – submit them as comments. (Nothing X-rated, please.) We’ll post them without criticism. Honest.

Key Bridge Global Authorized to Test

Said the FCC Chief Engineer
To Key Bridge: "Do your test, do you hear?
Just prove you comply --
No, there’s no second try.
Get it right, or you’re out on your rear."

Summary of the White Space Coordination Program To Date

The FCC said to the nation:
We’ve settled on this delegation –
Just ten firms – no more –
That will take on the chore
Of inputting white space co’rdination.

Spectrum Bridge, Inc. became number one.
Telcordia’s next in the sun,
And then Google was blessed
With permission to test . . .
But the FCC still wasn’t done.

Next in line: Key Bridge LLC Global
Coordinates fixed and, yes, mobile
Devices that choose
Just what spectrum to use
And with no interference – that’s no bull.

The Commission has clearly mandated
That each of the firms designated
Will assure straightaway
That white spaces will stay
Non-color co-ordinated.]

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New action follows December roll-out to eastern states.

TV “white space” devices, which operate on an unlicensed basis in locally vacant TV spectrum, are now authorized nationwide. This is pretty fast, by Government standards; just last December the FCC okayed the first large-scale roll-out to seven eastern states plus Washington, D.C. The class of approved coordinators for the database these devices rely on to find open channels is growing much more slowly. Also growing slowly is the number of FCC-approved devices that can use the service; we count just five so far.

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Postponement allows time after March 13 workshop.

Last December we reported on a proceeding that proposes novel spectrum management techniques to accommodate small cell operation in the 3.55-3.65 GHz band.

The FCC has moved back the due date for reply comments until April 5. This will allow time for reflection following the FCC’s public workshop on the 3.5 GHz issues to be held on March 13.

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Google is up next; seven more to come.

Unlicensed “white space” devices, which operate in locally vacant TV spectrum, rely on a database of other users to avoid causing interference. The FCC has approved ten coordinators to provide access to the database, and has completed tests on two: Spectrum Bridge, Inc. and Telcordia Technologies, Inc. The FCC subsequently authorized white space operation over much of the eastern United States.

Now the FCC has announced tests of a third provider, a relative unknown called Google Inc. The 45-day public trial will begin on March 4. Details are here. We will let you know the results.

Seven more to go.

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Suggested rules would combine and harmonize the rules for various sub-bands, and open another 195 MHz for Wi-Fi-type operation

Blame it all on Congress. The Middle Class Tax Relief and Job Creation Act of 2012, best known for extending the since-expired payroll tax cuts, took just a few lines for that task, but continued on for another hundred pages of unrelated legislation. The statute has been good for CommLawBlog; we reported on incentive auctions, microwave issues, 911 implementation, and lots more. Now the FCC has responded to yet another mandate in the act: to expand unlicensed operations in the 5 GHz band.

But the FCC is doing more: it has issued a Notice of Proposed Rulemaking  (NPRM) that would not only add new 5 GHz frequencies but also overhaul and (we hope) simplify a particularly confusing stretch of the rules. We will touch on that first, and then take up the proposed expansion.

It is hard to overstate the importance of having enough unlicensed spectrum. The vast majority of radio transmitters in use today are unlicensed. We would be hard pressed to get along without Wi-Fi, Bluetooth, cordless phones, nursery monitors, automatic toll payment, automatic braking in cars, and myriad other such consumer conveniences. Industry as well relies on unlicensed communications and, increasingly, on unlicensed radar. Equally important, though less often mentioned, is the importance of unlicensed spectrum as a technology test bed. Licensed frequencies, if auctioned, are usually too expensive to risk on untried technology, while non-auctioned, site-licensed spectrum is governed by technical rules so restrictive as to preclude experimentation. Much innovation benefits from the technical flexibility inherent in the FCC’s unlicensed rules.

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[Blogmeister’s prologue: Kevin Goldberg has a second-to-none track record when it comes to defending the First Amendment and Open Government. Named the outstanding constitutional law student in his graduating class at the George Washington University Law School, he has served as a member of the Board of Directors of the District of Columbia Open Government Coalition, a member of the Executive Committee of the Board of Directors of the National Press Foundation, a member of the Board of Directors of the Public Participation Project and the Chair of the Legislative Affairs Committee of the Media Law Resource Center. In 2006, Kevin was inducted into the National Freedom of Information Hall of Fame for his continued and superlative service in pursuit of open government. He is the youngest of the current 56 members in the Hall. When he has something to say about the public’s right to know, we listen. Kevin has something to say about the proposed “Federal Communications Commission Collaboration Act of 2013”.

We expect some of our readers may disagree with Kevin’s views, and we expressly invite those who do disagree to share their views with us in comments, or possibly even in a guest post.]

Nearly 50 years ago, Congress passed the federal Freedom of Information Act (FOIA), giving all of us citizens access to the records of every executive branch agency (subject to nine very narrowly-construed exceptions). The FOIA embodies the fundamental premise that the public has a right to know how the government does the public’s business.

A decade later, in the wake of the Watergate scandal, Congress passed the Government in the Sunshine Act (a/k/a the Sunshine Act), again seeking to ensure the public’s right to know. (In Congress’s words, “Government is and should be the servant of the people, and it should be fully accountable to them for the actions which it supposedly takes on their behalf.”) The Sunshine Act gives us all access to the meetings of certain executive branch agencies, much as the FOIA give us access to those agencies’ written records.

Maybe not for long, though, at least as far as the FCC is concerned.

Bills proposing the “Federal Communications Commission Collaboration Act of 2013” have been introduced in Congress – as S. 245 by Senators Amy Klobuchar, D-MN, and Dean Heller (R-NV) and H.R. 539 by Representatives  Anna Eshoo (D-CA), John Shimkus (R-IL), and Mike Doyle (D-PA). Under the bills’ provisions, FCC Commissioners would be allowed to engage in a significant amount of regulatory activity outside of the public’s view.

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Changes would require accreditation of test labs, expand role for TCBs.

This item will interest only a small fraction of our audience – but it will interest those people a great deal. If you test products for FCC compliance, or are responsible for having products tested, keep reading. Otherwise, you might enjoy this site instead.

The FCC’s extensive technical rules try to ensure, among other goals, that devices emitting radio-frequency energy do not cause interference to one another. The FCC enforces these rules through a set of “equipment authorization” procedures designed to confirm compliance before a covered device can be imported into or marketed in the United States. For the past quarter-century, the FCC has periodically streamlined the procedures and handed off authority to commercial providers. A new Notice of Proposed Rulemaking continues that trend.

The proposed changes would affect the “certification” procedure required for most mobile, portable, and unlicensed transmitters, LPFM transmitters, and a few other devices. As things stand today, a manufacturer or importer can have its product tested for compliance at any lab, subject only to the requirement that the lab have listed its facilities with the FCC. Some large companies maintain their own labs; most others rely on the hundreds of commercial labs worldwide. Compliance test results, along with photographs and specified technical information, go either to the FCC or to an FCC-authorized Telecommunications Certification Body (TCB). If all is in order, the FCC issues a certification, or the TCB does so on the FCC’s behalf.

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Offering more flexibility, the new rules are better suited to the current research and manufacturing environment.

The FCC is friendly to anyone who works on new radio technologies, whether a Ph.D. corporate researcher or a teenager making solder burns in his parents’ furniture. (A lot of the FCC engineers, we suspect, were once those teenagers.) The FCC carefully regulates radio equipment available for sale, but it also lets people build their own gear, either homebrew or from kits, with almost no regulation, and it encourages tinkering with new ideas.

Innovators who develop new radio-based products, even those ultimately meant to conform to the FCC’s technical rules, usually have to power up early models and prototypes that may not yet comply. In order to keep an eye on such activities, while still maximizing freedom in the lab, the FCC long ago set up the Experimental Radio Service. An inventor – or anyone – simply fills out a form with the location, the frequencies to be used, the power, and a few other details, and explains the purpose in a short paragraph. A few weeks later, the FCC sends a license.

The FCC has now rewritten these rules. The old form of experimental license remains available, but some new options appear as well. (Caution: the new rules depart substantially from those the FCC proposed back in 2010.) Among other changes, the new rules gather together the experimental provisions from other rule parts, including the Experimental Broadcast Stations formerly authorized under Part 74.

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The FCC has proposed an innovation that might vastly increase the ability of multiple users to share the same band.

The FCC has proposed a set of rules that look innocuous enough, and would apply only to a single, underused band. But they may herald a new way of managing spectrum – a suite of techniques having the potential to vastly increase the number of users that can share a given range of frequencies.

All of the radio spectrum is occupied – at least, all of the most useful parts, below about 60 gigahertz. But the demand for spectrum continues to increase. What the FCC needs most is a way to squeeze new users into spectrum that is already in use, without causing interference to either the incumbents or the newcomers.

Current spectrum management relies on “allocating” each band of frequencies to (usually) several categories of users. Those categories, in turn, come in three different priorities. Those designated as “secondary” may not cause harmful interference to, and must accept all interference from, those called “primary.” Unlicensed users, permitted in most bands, must protect all other users (except each other) from interference, and must accept all interference that comes their way. A few bands, like that used for GPS reception, have only one active user category; a few have as many as seven or eight. Three to five is about typical.

Yet even supposedly occupied spectrum is quiet in most places, for much of the time. Some services, like those using two-way radios, occupy their frequencies only sporadically; others, like some types of satellite earth stations, operate only at wide separated locations. All such users, however, vigorously resist letting others into their bands. A police officer at the scene of an accident, picking up his microphone to request an ambulance, hopes to find an empty channel to make the call. The satellite operator may want the option of installing earth stations at new locations, without interference from other kinds of transmitters nearby.

As we explain below, the FCC thinks it can fully protect all such users while still letting new entrants share the same frequencies.

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New systems must protect many other services from interference.

Fully four years after adopting rules for unlicensed TV Band Devices (TVBDs), also called “white space” systems, the FCC has authorized roll-out beyond the two small test areas previously approved. Touted by advocates as “Wi-Fi on steroids,” TVBDs can now boot up in New York, New Jersey, Pennsylvania, Delaware, Maryland, Washington DC, Virginia, and North Carolina.

The FCC expects to extend authorization nationwide by mid-January.

TVBDs are required to avoid causing interference to multiple services: broadcast TV; fixed broadcast auxiliary service links; receive sites for TV translators, low power TVs, Class A TVs, and multichannel video programming distributors; public safety and private land mobile; offshore radio telephone; radio astronomy; and “low power auxiliary service,” which includes licensed (and some unlicensed) wireless microphones. 

The complexity of the TVBD rules results from the need to ensure that all of these services can operate unharmed. In many metropolitan areas having multiple TV channels and heavy use of wireless microphones, vacant spectrum for TVBDs is already scarce. The FCC’s ongoing plans to consolidate TV broadcasters onto fewer channels, so as to free up more spectrum for wireless use, will only make things worse.

Simultaneously with the spread of TVBDs into the Middle Atlantic states, the FCC expanded its registration program for wireless microphones from those same states out to the rest of the country, keeping the wireless mic registrations a step ahead of the TVBD roll-out.

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Registration is needed to protect qualifying events from interference caused by TV Band Devices

The FCC has expanded its registration program for wireless microphones from the Middle Atlantic states to the rest of the country.   Registration helps to protect qualifying wireless microphones that operate in vacant TV channels from interference caused by TV Band Devices (TVBDs), also called “white space” systems, that likewise use vacant TV slots.

When the FCC established rules for TVBDs, it required those devices to avoid interfering not only with TV stations, but also with several other categories of equipment operating on TV frequencies. The most populous of those, by far, are the wireless microphones that are ubiquitous in TV, stage, and film production.

Most wireless microphones used in TV and films are licensed by the FCC.  Most others – including those used in stage shows, churches, and the FCC meeting room – operated illegally until January 2010, when the FCC authorized low-power models on an unlicensed basis by waiver. (As it considers whether to make those rules permanent, the FCC recently sought to update the record on wireless microphone issues generally.)

Two TV channels in every market are closed to TVBDs, so as to leave room for wireless microphones. Licensed wireless microphones needing additional channels are entitled to interference protection from TVBDs. So are unlicensed microphones on other channels, but only if used for major sporting events, live theatrical productions and shows, and similar occasions that require more microphones than the set-aside channels can accommodate.

To implement protection, qualified events must register in the database that controls which frequencies TVBDs can use at each location. The FCC has authorized the operation of TVBDs in New York, New Jersey, Pennsylvania, Delaware, Maryland, Washington DC, Virginia, and North Carolina, and expects nationwide authorization by mid-January. Those who distribute or use wireless microphones should make sure any needed registrations are in place before TVBDs are deployed in their vicinity.

The details of the registration process are available here. The conditions and procedures are complex; and the FCC cautions that most uses of unlicensed wireless microphone do not qualify for registration. We recommend planning ahead.

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Not surprisingly, the FCC has extended the comment deadlines in the wireless microphone proceeding again. In that proceeding, of course, the Commission is looking into how best to accommodate wireless mics in the face of the dwindling amount of vacant television spectrum space on which those mics have historically been allowed to operate. We reported on the last extension just a couple of weeks ago. The goal of that first extension was to sync up the comment deadlines in the wireless mic proceeding with those in the Incentive Auction proceeding, since the latter is likely to have a significant impact on the former. 

But since then the Commission extended the comment periods in the Incentive Auction docket. To maintain the synchronicity between those deadlines and the wireless mic deadlines, the Commission has, on its own motion, moved the wireless mic deadlines as well. Comments are now due by January 25, 2013, and replies by March 12, 2013.

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We recently reported that the FCC had invited comments (and reply comments) with respect to test results that may show interference from Progeny LMS, LLC, a licensed provider in the 902-928 MHz band, into some of the myriad unlicensed devices in that same band. The invitation was issued on November 20, and provided that initial comments were to be filed by December 11, a scant three weeks later (with the long Thanksgiving weekend taking up a significant chunk of those three weeks).

The FCC has now extended the comment periods, but not by much. Progeny opposed any extension, but the Commission was persuaded that at least some additional time was warranted. As a result, comments are now due on December 21, 2012 (a whopping ten extra days) and reply comments on January 11, 2013. That latter date is curious because, in the text of the order, the Commission says that it’s “provid[ing] ten additional days for filing reply comments”. But since the original reply deadline was December 21, an extra ten days should have landed the deadline – if our math is correct – on December 31. Despite that, the order clearly specifies January 11 as the new reply deadline, which seems to constitute (again, if our math is correct) a 21-day extension. Let’s just assume that the Commission threw in the extra time in view of the intervening year-end holidays and leave it at that..

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Overwhelmed by the enormity and complexity of the Incentive Auction NPRM (which it took us six – count ‘em, six) separate posts to summarize)? No problem. Thanks to the NAB and CTIA-The Wireless Association®, who jointly requested more time, the FCC has extended the deadlines for comments on the NPRM. Mark your calendars: comments are now due by January 25, 2013, and reply comments are due by March 12.

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[Blogmeister’s Note: This is the last in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

Once the “reverse” and “forward” auctions have both been completed and TV licenses have all been tucked away in their newly-compacted space, the fun will really begin for the Commission.

Once the “reverse” and “forward” auctions have been completed and the broadcast TV industry has been repacked, the FCC will finally be able to reconfigure the vacated UHF spectrum for mobile. But determining, now, precisely how that reconfiguration will ultimately look, then, poses a unique challenge in view of the number of unknowns currently in play.

Until the “reverse” auction is completed, questions will remain regarding the amount of spectrum that will be available for reconfiguration, the particular frequencies comprising that available spectrum, and the geographic locations covered by that spectrum. Therefore, the band plan described in the Incentive Auction Notice of Proposed Rulemaking (NPRM) is more of a “framework” based on the expectation of cleared frequencies. In admirable bureaucratese, the NPRM describes its goal as “a band plan that balances flexibility with certainty.” 

The certainty includes proposing a fixed amount of downlink spectrum nationwide with uplink spectrum possibly varying in different geographic areas. The idea is to best utilize what are expected to be varying amounts of cleared spectrum in different geographic areas. By providing uniform downlink spectrum throughout all geographical areas, the Commission hopes to assure a more interoperable universe at the device level, where each mobile device can use the same receive filters while the carriers’ base stations can be modified to allow for multiple uplink spectrum signals. A level of interoperability at the device level is expected to lead to lower device costs while allowing for greater economies of scale. 

Consistent with the uncertainties surrounding the final reconfiguration process, the Commission advises that its general “focus” is on five “key policy goals”, to wit: utility, certainty, interchangeability, quantity, and interoperability.

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[Blogmeister’s Note: This is another in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here.Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

The “forward” auction to be used to dole out reconfigured spectrum to wireless operators may seem traditional, but watch out. 

If the “reverse” auction designed to clear TV broadcasters out of large chunks of their current spectrum isn’t complicated enough, consider the “forward” auction. That’s the component of the Incentive Auctions in which hopeful wireless licensees will bid on the to-be-vacated spectrum sight unseen at the same time that the spectrum is being cleared. Because the availability of wireless licenses is dependent upon the results of the reverse auction in different geographic areas, wireless bidders won’t know exactly which spectrum band they’re bidding on or even whether any band will actually be available when the reverse auction is over. 

This double helix of descending bids on spectrum simultaneously coupled in sequential stages with parallel ascending bids on that same spectrum is audacious. But it is theoretically an efficient and quick way of re-assigning a precious resource.

Complexity in the computer age is not necessarily a deal breaker, but human (and computer) fallibility gives us some pause about this plan. Through the Incentive Auction Notice of Proposed Rulemaking (NPRM), the Commission is still looking for input on its plan, so we can expect experts from the world of Academia to chime in knowledgeably on the concept. 

In the meantime, we lay out here the Commission’s preliminary thoughts. The three basic auction design elements are: bid collection procedures, assignment procedures, and pricing.

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[Blogmeister’s Note: This is another in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

Once the final participants in the repacking of the TV band have been identified through the "reverse" auction process, the shuffling of stations necessary to accomplish the repacking will raise a number of practical considerations and conundrums. 

Once the auctions have been completed, the Commission and the TV industry will have to grapple with the practical implementation of repacking: who gets what channels, how will stations moving from one channel to another effectuate that transition, what (if any) reimbursement of transition costs will be available, and to whom. This phase of the process will affect all TV broadcasters, whether or not they opted to participate in the “reverse” auction.

 Initially, the post-transition channels to which full power and Class A station will be assigned will be determined by the FCC, without input from licensees. The Commission will use a software program to figure out the optimal way to squeeze the TV industry into the portion of the current TV band that will remain, post-auction, available for TV operations.   Although stations are not to be involuntarily moved from UHF to VHF, almost any other move will be fair game as long as it’s consistent with the auction results.  Licensees unhappy with whatever “new” channel they are assigned to will have very limited recourse: the Spectrum Act denies stations the right to protest modifications of their licenses (i.e, channel changes)imposed by the Commission to accomplish the repacking.

Re-licensing Procedures. Once the Commission announces its repacked TV band, a number of procedural steps will have to be taken: as we all learned from the transition to DTV several years ago, it’s one thing for the FCC to specify where stations are supposed to operate on the spectrum; it’s an entirely different thing to get those stations up and running on the appointed channels.

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In separate reports to Congress, both agencies found high spectrum efficiency.

With all the work Congress has to do in averting fiscal cliffs, raising debt ceilings, and naming post offices, we were surprised they found time to look into whether fixed microwave spectrum is being used efficiently. Apparently no concern of national interest, no matter how obscure, escapes the attention of our lawmakers.

In passing the Middle Class Tax Relief and Job Creation Act of 2012, back in February, Congress tacked on questions to the FCC and the Government Accountability Office (GAO) about use of the 11, 18, and 23 GHz fixed microwave bands. Congress asked the FCC for the “rejection rate” in these bands – “rejection rate” being defined as the number and percentage of common carrier applications that are rejected due to spectrum congestion. Congress asked GAO whether current rules provide adequate incentive for efficient use of the spectrum, and whether the Government could maximize revenue by auctioning the bands.

We reported earlier on the statute, and subsequently, on the FCC’s public notice seeking advice on what to tell Congress.

Both agencies have now issued their reports.

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[Blogmeister’s Note: This is another in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

Whether or not you plan to participate in the “reverse” auction, if you’re a TV licensee, you should be aware of what the FCC has in mind for the spectrum around you.

It’s important to understand that the Incentive Auction program is merely a device designed to facilitate the “repacking” of the spectrum. That is, the FCC is dead-set on freeing up space for mobile broadband use in spectrum currently occupied by TV broadcast stations. In other words, many TV licensees can be expected to be moved off their current channels, whether voluntarily (through the “reverse” auction process) or by forced relocation. So while TV licensees not planning on participating in the “reverse” auction” may not be terribly concerned with the mechanics of submitting bids, all TV broadcasters need to pay attention to the FCC’s proposed approach to repacking the spectrum. 

Under the Spectrum Act, when the Commission relocates TV stations in its repacking efforts, it must take “all reasonable efforts” to preserve the “coverage area” and “population served” of every surviving full power or Class A station. For these purposes, “coverage area” and “population served” are to be determined using the methods set out by the Office of Engineering and Technology’s Bulletin No. 69 (OET-69). LPTV and translators station will receive no protection during the repacking process and will be subject to displacement by any relocated full power or Class A station, although the NPRM does request comment on some measures designed to help LPTV and translator stations survive in a post-auction world. 

As for full power and Class A stations, the Commission in the Incentive Auction Notice of Proposed Rulemaking (NPRM) is looking to determine just what “coverage area” and “population” must be protected. Under OET-69, the term “coverage area” is not defined, but it is used synonymously with “service area” as that latter term is defined in Section 73.622(e) of the rules. While “coverage area” (or “service area”) does not account for interference from other stations, OET-69’s measurement of “population served” does, counting only population that is both within the “coverage area” and where the signal is not masked by interference.

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[Blogmeister’s Note: This is another in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

Hint: Maybe fewer folks than you might have thought.

Who will be eligible to participate in the “reverse” spectrum auction? Not, it would appear, everybody who might want to.

As required by Congress in the Middle Class Tax Relief and Job Creation Act of 2012 (which the FCC prefers to refer to as the “Spectrum Act”), in its Incentive Auction Notice of Proposed Rulemaking (NPRM), the Commission proposes significant eligibility limitations as far as the “reverse” auction goes.

First and probably most important, the only folks who could participate in the “reverse” auction would be licensees of full power and Class A television stations, both commercial and noncommercial. That automatically eliminates LPTV licensees and TV translator licensees.

But Class A licensees should not necessarily be breathing easily, particularly in light of the Commission’s recent attempts to downgrade a number of Class A stations to LPTV status.   The NPRM proposes that any station whose Class A status has been revoked by the Commission would not be eligible to participate in the auction, even if the order downgrading the station has not become final by the time of the auction. (Licensees who get downgraded can seek reconsideration or review of the decision to downgrade, thus avoiding finality and keeping alive – or so they hope – the possibility that the decision might be reversed during the appeals process. Under the FCC’s proposed eligibility criteria for the reverse auction, however, any effort to reverse a downgrade might be pointless if the auction, and consequent repacking, occurs before the downgraded station could be restored to Class A status.) 

There are some potential limiting considerations for full power licensees, too.

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[Blogmeister’s Note: This is the first in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series as they are posted by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

An overview of the FCC’s proposed approach to spectrum-clearing/spectrum-repopulating incentive auctions and some of the myriad factors at play in that process.

The Incentive Auctions are coming. No doubt about it. TV and Class A licensees will be given the opportunity to cash in in return for making some or all of their spectrum available for repurposing (the beneficiaries of the repurposing being wireless broadband operators). The innovative concept floated out two years ago in the National Broadband Plan is now targeted for implementation in 2014 . . . if about a million different moving parts all happen to align just right. 

Recently, Commission officials (including Commissioner Rosenworcel and Incentive Auction Task Force co-leader Gary Epstein) have emphasized the importance of making the auction process understandable and easy to participate in. As Rosenworcel put it, “[s]implicity is key . . . [A]t every structural juncture [of the auction design], a bias toward simplicity is crucial”. 

Perhaps. But that brings us to the Commission’s Notice of Proposed Rulemaking (NPRM) in which it lays out – over 140 pages of single-spaced text plus 26 pages of proposed rules plus 22 pages of additional appendices plus 15 pages of separate statements by the Commissioners plus a 20-page “Incentive Auction Rules Option and Discussion” – the agency’s thoughts on the Incentive Auctions’ design.

“Ease” and “simplicity” do not spring to mind as the reader slogs through the dense, highly technical NPRM.

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Potentially at stake: the utility of the 902-928 MHz band for unlicensed operations

We recently reported on test results that may show interference from Progeny LMS, LLC, a licensed provider in the 902-928 MHz band, into some of the myriad unlicensed devices in that same band.

The FCC has now asked for public comment on those test results.

Comments are due on December 11, 2012 and reply comments on December 21.

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The comment deadlines have been extended in the FCC’s inquiry about how best to accommodate wireless microphones in the face of the dwindling amount of vacant television spectrum space on which those mics have historically been allowed to operate. The original comment deadline was the day before Thanksgiving, but that date has now been pushed back 30 days.  The extension was granted at the request of a number of parties who want to coordinate (a) their comments in the wireless mic proceeding with (b) their comments in the separate Incentive Auctions proceeding, which will have an impact on (among other things) accommodation of wireless mics in the repacked spectrum contemplated by the Incentive Auctions proposals.  Comments are now due by December 21, 2012, and replies by February 19, 2013 (the same deadlines as in the Incentive Auction proceeding).

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Order reaffirms right of police and fire departments to license robots.

Surveillance robot maker ReconRobotics, Inc. continues to prevail over the best efforts of the amateur radio community. Most recently, the FCC ruled against the amateurs in reaffirming the right of police and fire departments to license ReconRobotics’s robots for operational use.

Read here about the device, which runs around under remote control and sends video back to the operator. (We’d love to have one to play with here in the office.) It operates under an FCC waiver, granted over the objections of ARRL, the national association for amateur radio, and several individual amateur licensees. The amateurs had concerns about interference from the robot’s radio into their communications, and feared also they might be blamed if their operations cause interference to a robot. Having failed to block the waiver the first time, the amateurs asked the FCC to reconsider the grant, which the FCC declined to do.

Meanwhile, ARRL and one James Edwin Whedbee, an amateur licensee, asked the FCC to reject  a batch of several dozen license applications filed by police and fire departments for use of the robots. Their petitions recycled many of the same grounds on which ARRL had opposed the waiver. The FCC turned them down. ARRL and Whedbee both demanded reconsideration of that decision, while Whedbee went on alone to challenge a second batch of applications.

Some months later, Whedbee commendably reported to the FCC that, contrary to his earlier suspicions, in fact he had detected no interference from robot operations. He accordingly moved to withdraw all of his objections.

The FCC has now granted Whedbee’s requests to withdraw, and in the same order, turned down ARRL’s most recent request for reconsideration.

Is the saga over? Will first responders around the country now be able to use these life-saving devices without having to battle the amateurs every step of the way? Will CommLawBlog finally have to find something else to write about? We’ll let you know.

(Disclosure: FHH represents ReconRobotics, Inc. in these proceedings.)

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LightSquared proposes to move its cell-type service away from GPS frequencies . . . and into a Weather Satellite Band.

The FCC has requested comment on a Petition for Rulemaking filed by LightSquared Subsidiary LLC seeking a new co-primary allocation permitting non-Federal terrestrial mobile use of the 1675-1680 MHz band.

You remember LightSquared – the company that wanted to deploy a tower-based wireless broadband network in the 1545-1555 MHz satellite downlink portion of the L Band, close to GPS frequencies. GPS users objected, and the National Telecommunications and Information Administration (NTIA) which administers federal spectrum, decided GPS interference concerns could not be overcome, whereupon the FCC pulled LightSquared’s tentative authorization.

With its recent Petition for Rulemaking (and other documents filed in late September), LightSquared seeks a work-around to its GPS headache (and possibly a Hail Mary to resurrect the company, which is now in bankruptcy).

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Licensed provider and unlicensed users disagree on meaning of joint test results.

Most of us rely on multiple unlicensed radio transmitters around our home and office. In fact, most us carry several on our person: Wi-Fi and Bluetooth on our phone, wireless earphones for the music player, the gizmo that unlocks our car from across the street, a building security card . . . All of these, plus the dozens more in most homes and offices, operate under stringent FCC rules. One of those rules says these devices must accept any radio-frequency interference that comes their way. The engineers who design the products know that, and are good at working around other transmitters in the same frequency range.

There is one exception to this rule: one kind of licensed transmitter is required to protect unlicensed devices against interference. These transmitters operate in the “Location and Monitoring Service” (LMS), which uses large parts of the 902-928 MHz band. That same band is also home to a vast array of unlicensed devices that are convenient around the home (like cordless phones and baby monitors), and vital to commerce and industry (like retail inventory systems and remote controls for construction cranes). LMS providers are uniquely required to show through field tests that their equipment will not cause “unacceptable levels of interference” to unlicensed operation. This special rule reflects the FCC’s judgment that unconstrained LMS poses an exceptional threat of interference to unlicensed devices.

Late last year the FCC granted a waiver to an LMS licensee, Progeny LMS, LLC, that eased back two of the LMS rules. As a condition of the waiver, the FCC required Progeny to test for interference into unlicensed devices. It then sought public comment on the test results. Progeny claimed the results showed little or no interference into unlicensed devices, but commercial users of those devices vehemently disagreed.

In response to an informal request from the FCC, Progeny has now conducted additional tests jointly with three major users of unlicensed equipment in the 902-928 MHz band: the Wireless Internet Service Providers Association (WISPA), whose members provide wireless Internet access, and Landis+Gyr and Itron, which both conduct automatic meter reading. (Links in the preceding sentence go to test reports filed with the FCC.)

As often happens in these cases, the parties disagree on how to interpret the data. 

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 We recently reported on the FCC’s inquiry about how best to accommodate wireless microphones in the face of the dwindling amount of vacant television spectrum space on which those mics have historically been allowed to operate. The Commission’s request for comments has now made it into the Federal Register, which as we all know by now establishes the relevant filing deadlines. Comments in response to the FCC’s request are due by November 21, 2012, and reply comments are due by December 12, 2012.

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New “jammer tip line” invites the public to turn in users and sellers of these devices.

Yes, we know you want a cell phone jammer.  We all do.  But you can’t have one.  They’re illegal.  One reason:  their range is difficult to control.  You want a jammer just to shut down the inane conversation next to you at Starbucks or on the bus.  But thanks to your jammer, a heart attack victim across the street, desperately trying to call for help on his cell phone, may get a screen saying, “No Service.”

The FCC worked hard to shut down dedicated websites that sell phone jammers.  Now it has turned its attention to sellers who try for a less conspicuous profile by selling through multi-purpose sites, particularly craigslist.com.  The rules bar the FCC from imposing a fine on a retailer, among other categories, without first issuing an official notice called a “citation” that describes the prohibited behavior, after which the retailer must re-offend before it becomes subject to the fine.  The FCC has taken that first step against 23 craigslist vendors by issuing citations to each.  Here is an example.  The full list is available here; scroll down.

The FCC also instituted a “jammer tip line” the public can use to turn in users and sellers of these devices.  Call 1-855-55-NOJAM or email to jammerinfo@fcc.gov.  And the FCC reissued an “Enforcement Advisory” that explains exactly what jamming equipment is illegal, and why.

So when the person next you in Starbucks or on the bus pulls out a cell phone and starts a long and pointless conversation, using a jammer is not a good option.  Instead, we recommend a long and angry glare.  Repeat as necessary.

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Persistent sleuth Michael Marcus obtains, posts document shedding light on recurring interference to airport weather radars.

In our recent blog post about an AT&T wireless Internet service causing interference to an airport weather radar in Puerto Rico, we asked whether the FCC had charged AT&T with the wrong offense. Because the transmitter operated outside its FCC-certified frequency range (among other problems), the FCC determined it did not qualify for unlicensed operation, and so fined AT&T for not having a license – even though AT&T could not have obtained a license for that service.

Our friend Michael Marcus, a spectrum-savvy engineer (and former FCC official), asked a different question: how did the transmitter get to be operating on a non-certified frequency? Where most of us would be content to mull this over in our idle hours (if it occurred to us at all), Marcus is made of different stuff. He not only took the question to the highest reaches of the FCC, but managed to get some answers.

Modern radio transmitters, like most other modern devices, are controlled by software. The FCC recognizes a category of transmitters called “software defined radios,” or SDRs, which can be legally updated or modified by software changes, including those downloaded over the air. But most transmitters do not qualify as SDRs. Once certified by the FCC, their properties have to be locked in. The software is supposed to be secure against changes, particularly those that would take the transmitter out of compliance and lead to, say, interference to airport radar.

AT&T’s Puerto Rico transmitter was certified for operation over 5735-5840 MHz, but it was being operated at a frequency outside that range. Moreover, the transmitter lacked the required capability to listen for weather radar signals, and if it found them, to avoid the frequencies on which they occur – a feature called “dynamic frequency selection,” or DFS.

The transmitter was manufactured by Motorola, which knows how to comply with FCC technical rules. But the transmitter was non-compliant when FCC inspectors found it in operation – on a non-certified frequency and lacking DFS – in AT&T’s Puerto Rico system. Moreover, the FCC has identified other non-compliant transmitters operating in the same band. In every case we know of, the transmitter was made by Motorola, and all came from the same “Canopy” product line. 

What went wrong?

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FCC action follows interference to airport weather radar.

The FCC has confirmed a fine of $25,000 against AT&T for operating a Wi-Fi-type device that caused interference to a weather radar at a Puerto Rico airport. Yes, it appears that AT&T slipped up. But we think the FCC fined it for the wrong offense.

The problem stems – as do many FCC problems – from the fact of an overcrowded spectrum. Almost every useful frequency is shared by multiple users. Part of the FCC’s job is to set priorities among them.

One such choke point occurs in the band at 5470-5725 MHz. Since 1998, the FCC has allowed relatively high-powered devices to use highly directional antennas in this region, all without a license. The band is popular among companies – called “wireless Internet service providers,” or WISPs – that provide Internet service to locations not easily reached by other broadband facilities.

A 2003 expansion of the band produced an overlap with frequencies also used for radars that detect “wind shear” near airports. This condition is potentially dangerous to aircraft flying close to the ground, as when approaching the runway to land, so the radars are important to flight safety. They operate at 5600-5650 MHz, squarely within the 5470-5725 MHz WISP band. The initial rules for WISPs (and other unlicensed users of the band) required devices to (a) sniff the air for radar signals, and (b) if those signals are found, to avoid the frequencies on which they occur  – a capability the FCC calls Dynamic Frequency Selection (DFS). After interference occurred anyway, the FCC worked with device manufacturers and radar operators to clarify the rules. When some interference persisted, the FCC refrained from shutting down the WISPs, as it had a right to do, and instead sought the WISPs’ cooperation in heading off the problem.

Then came the AT&T event.

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The FCC wants help in squeezing more wireless microphones into ever-shrinking spectrum.

Traditional wireless microphones – the kind you see on TV, big stage shows, and in lecture halls and churches – operate on locally vacant TV channels. But those channels are becoming scarce. The FCC has asked for comment on how to accommodate these microphones in the future.

In the old days of analog TV, there were a lot of TV channels, and the shortcomings of analog receivers meant a lot of those channels in each market could not be used for TV. That left plenty of room for wireless microphones. The picture began to change in 2009, when the last full-power analog stations went off the air. Because digital TV stations can be packed more tightly than analog stations, the FCC was able to free up 18 channels for other uses, which left fewer empty channels for wireless microphones. Then, a year ago, the FCC approved the first operation of “white space” devices that provide Wi-Fi-like service in some of the remaining vacant TV channels. The FCC reserved two channels in every market for wireless microphones, and provided for additional channels where needed in a complicated set of regulations; but there is no getting around the fact that a lot more devices will be trying to operate in a lot less spectrum. Then, last month, the FCC proposed “incentive auctions” designed to encourage broadcasters to give up still more channels.

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 Last May we reported on the release of a Report and Order in which the FCC authorized Medical Body Area Network (MBAN) devices that will operate in the 2360-2400 MHz region, immediately below the heavily-used unlicensed band that houses Bluetooth, and most Wi-Fi, along with many other applications. For some reason, though, that Report and Order didn’t make it into the Federal Register, so the new rules haven’t taken effect . . . but some will next month.

We are pleased to let you know that the Commission’s magnum MBAN opus from last May has at long last found its way into the Federal Register. That in turn establishes the effective date of many (but not all) of the rules. The effective date will be October 11, 2012 ]. But several of the revised rules – §§95.1215(c), 95.1217(a)(3), 95.1223 and 95.1225, to be precise – still won’t kick in as of that date. That’s because they involve “information collections” subject to the Paperwork Reduction Act, so they have to be run past the Office of Management and Budget. Check back here for updates on that front.

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A feature of modern air travel is the ritual shutting down of electronic gadgets before take-off and landing. The FAA is taking another look at whether this is really necessary.

A little-loved feature of modern air travel, along with security lines, cramped legroom, and overstuffed overheads, is the pre-takeoff ritual where the flight attendant says, “You must now turn off all personal electronic devices. Anything with an on/off switch must be in the off position.” And the same thing again as the plane is preparing to land.

The FAA is taking another look at whether this procedure is really necessary.

Current FAA rules prohibit the operation of all personal electronic devices (PEDs) at all times during the flight, except for hearing aids and heart pacemakers (understandable) and also electric shavers and portable voice recorders (less so). The FAA rule is here. Individual airlines can authorize departures from the rule; most have followed an FAA recommendation to allow use of a PED without an active transmitter at altitudes above 10,000 feet – about five minutes after takeoff and fifteen minutes before landing. Most airlines prohibit transmitters throughout the flight (this includes cell phones, Bluetooth, and Wi-Fi, except to use airline-provided Wi-Fi services), and still require all devices to be turned off below 10,000 feet.

These rules date back to the mid-1960s, when the FAA’s main concerns were electrical interference into the aircraft’s communications and navigation gear. Since then, as aircraft have become increasingly computerized and electronic displays proliferated in the cockpit, the possible on-board targets of interference have increased. Over the same time period, passengers’ gadgets have likewise become computerized and have proliferated. And passenger complaints about being cut off from their devices have steadily mounted.

The FAA has now launched a comprehensive review of PEDs and their actual risk to aircraft safety.

We hope the FAA will address some of the present inconsistencies.

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Not to be strung along, FCC shreds instrument maker’s apparently faulty paperwork. 

The FCC regulates most digital devices, which nowadays include almost anything having an on/off switch. Non-compliance can have unpleasant consequences. Latest to find itself center stage in the FCC’s spotlight: the iconic guitar maker Fender Musical Instruments Corporation, which makes the Stratocaster, Telecaster, and other instruments and electronic gear that have dominated pop, rock, and jazz for generations.

Audio manufacturers in particular have recently been targets of FCC enforcement, including this case and this one. Fender signed a consent decree in which it did not admit guilt, so details of its alleged offense are sparse. But it fretted enough to pay $265,000 to settle the matter, which apparently involved faulty paperwork connected with the importation of bass amplifiers, pre-amplifiers, tuners, audio mixers, and wireless microphones, packaged either separately or with musical instruments. Fender may also have slipped up in providing required labels and information in its instruction manuals.

So far as we can tell, the FCC did not allege that any of the devices involved actually failed to meet required technical standards. The shortcomings appear to consist entirely of omissions in documentation and labeling. Which is a shame, because the underlying rules are just not that hard to follow. Fender's problems should strike a chord with any company that manufactures or imports any kind of digital equipment.

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The FCC follows up on last summer’s overhaul by taking further steps to make life easier for Fixed Service wireless operators.

August must be unofficial “wireless backhaul” month over at the FCC. Following up on last summer’s “overall backhaul overhaul,” the FCC has now taken further steps to make life easier for Fixed Service wireless operators.

Fixed wireless is a low-profile yet indispensable component of the nation’s communications infrastructure, serving a wide variety of entities and industries. It helps to balance the electrical grid, coordinate the movements of railroad trains, and transmit emergency calls to local police and fire personnel. It moves business data for companies with dispersed locations, such as financial companies, chain stores, restaurants, hotels, airlines, and car rental companies.

Increasingly, fixed wireless links are used as “backhaul” for mobile communications, carrying signals between central network facilities and cell towers, particularly where wireline is impractical, as across rough terrain or dense urban buildup. In other words, wireless backhaul helps get that cat video to your smartphone or tablet. Anyone who doubts the ubiquity of fixed microwave need only note the vast numbers of sideways-facing dishes and domes on radio towers, water towers, and buildings.

As important as Fixed Service links are, however, we suspect that the technical minutiae of the FCC’s latest action is of interest to relatively few readers. Therefore, we are providing just the highlights. (If you want to know more, you can read all the details here.)

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Last month we reported on an FCC decision that wrapped up a couple of proceedings relating to three types of specialized radar devices in the 76-77 GHz band: one for vehicle radars, which function as part of automatic braking systems in cars; one for detecting “foreign object debris,” or FOD, on airport runways; and one for tracking aircraft and service vehicles around airport runways and ramp areas.  We noted that the Commission’s order curiously, and uncharacteristically, didn’t announce an effective date for the rule changes.

No problem. According to a notice in the Federal Register, those changes will take effect on September 12, 2012.

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But rules adopted back in May have not yet taken effect.

The Federal Register has still not published rules on Medical Body Area Networks that the FCC adopted back in May, so there is still no telling when these rules might take effect.  But the Federal Register has published the FCC’s request for additional comment on frequency coordination for these devices.  Those comments are due by September 10, 2012, and reply comments by September 28. For details on the whole MBAN thing, see our post from last May.  And check back here for updates on when the rules become effective.

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Rules that vastly increase numbers of available codes take effect on August 24.

The expansion of “grantee codes” (issued by the FCC in connection with equipment certifications) will take effect on August 24, 2012, according to a notice published in the Federal Register. This will have no effect on any current regulatees – it’s more of an internal housekeeping matter for the FCC, designed to give the Commission a greater resource of codes to issue in the future. (As we previously reported, thanks in no small measure to the success of the wireless device industry in the U.S., the FCC foresees running out of grantee codes.) So if you happen to receive a grantee code after August 24 and it looks different from the codes you’re used to seeing (because it has more characters and starts with a numeral), don’t fret – it’s just the new system kicking in.

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Action affects devices in the 1920-30 MHz band.

A rule change the FCC adopted (and we reported on) last March, to simplify the technical rules for unlicensed PCS devices in the 1920-30 MHz band, has finally hit the Federal Register. The new rules take effect on August 22.

 

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Applications include vehicle braking systems and airport use.

The FCC has wrapped up a couple of proceedings relating to three types of specialized radar devices in the 76-77 GHz band: one for vehicle radars, which function as part of automatic braking systems in cars; one for detecting “foreign object debris,” or FOD, on airport runways; and one for tracking aircraft and service vehicles around airport runways and ramp areas. All of these applications are approved for unlicensed use.

The 76-77 GHz frequencies are among the very highest that the FCC has authorized for any purpose. They are particularly well suited to short-range radar applications. Outgoing signals tend to form tight beams, even from antennas just a few inches across; and the signals tend not to travel far, as almost any kind of matter will block them.

The current vehicle radar rules are complicated, as we explained last year, with power limits that depend both on (a) whether the vehicle is stopped or moving, and (b) whether the radar is aimed forward or in some other direction. Adopted back in 1995, those rules tried to limit the amount of radio-frequency energy to which pedestrians would be exposed – due, for example, to idling cars at stoplights. The following year, the FCC modified its RF exposure rules, relaxing the exposure limits in some bands (including frequencies above 1500 MHz) and thereby permitting increased power. 

It took the FCC until now to get back to the vehicle radars, but manufacturers may decide the wait was worth it.

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For an FCC blog, that’s a little like saying “dog bites man” – not really news.

You have to admire their persistence. ARRL, the national association for Amateur Radio, has yet again challenged the FCC’s rules for Broadband-over-Power-Line (BPL), just as it has at every opportunity since the FCC first proposed BPL back in 2003.

As you would expect from the name, BPL transmits broadband over the same lines that carry electric power along the street, siphoning off signals to houses and apartments along the way. Its proponents once hailed BPL as the “third wire” into the home for broadband service, the other two being the cable TV and telephone (or FIOS) connections. But in recent years BPL providers have scaled back their ambitions. Now they mostly help out electric utilities with internal communications for meter reading, load management, and the like. Few consumers receive their Internet service via BPL.

But ARRL has not scaled back its opposition.

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FCC to report on frequency congestion in the 11, 18, and 23 GHz microwave bands.

Chances are you have forgotten about the Middle Class Tax Relief and Job Creation Act of 2012, passed back in February, ostensibly to extend a cut in payroll taxes. But the FCC hasn’t forgotten. Because the 250+ pages of the Act unrelated to extending tax cuts include a provision telling the FCC to report to Congress next October on a topic that, frankly, we didn’t know Congress cared about: common carrier point-to-point microwave applications in the 11, 18, and 23 GHz bands that fail to make it through frequency coordination. Read the details here.

The FCC has now released a public notice inviting input on that subject. And it may indeed need help.

The FCC’s first problem: Congress has ordered it to report on the application “rejection rate”, which Congress defines as

the number and percent of applications (whether made to the Commission or to a third-party coordinator) for common carrier use of spectrum that were not granted because of lack of availability of such spectrum or interference concerns of existing licensees.

But applications go only to the FCC, not to frequency coordinators. And by FCC rule, they reach the FCC only after successful coordination. So the rejection rate, as defined by Congress, is necessarily zero.

Rather than just tell that to Congress and get back to its real work, the FCC obligingly broadened the question to one that perhaps Congress meant to ask: the numbers of requests to frequency coordinators that could not be accommodated, and the reasons why.

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Texas AM whacked $25K for statement that might have been inaccurate.

One of the most fundamental axioms of communications law: correctness is essential, whether you’re filling out an application, filing a pleading, responding to an FCC inquiry, or whatever. When you tell the Commission something, you had better be right. We’re not talking about affirmatively lying to the Commission. That, of course, is even higher up on the list of mortal sins in the FCC’s catechism. But nowadays, any inaccuracy in what you tell the agency – even if it’s not an intentional inaccuracy – can land you in hot water, unless you can show that you had a “reasonable basis” for your statement. The FCC enforcement folks, whose contributions to the government's coffers have increased dramatically in recent years, have recently driven this point home with considerable vigor.

As we have previously observed, Section 1.17(b) of the Commission’s rules prohibits what we have referred to as “misrepresentation lite”. As my colleague Mitchell Lazarus described it, the misconduct prohibited by the rule

does not involve “misrepresentation” – what many of us know as “lying” – because that requires some element of deceit. No showing of deceit is necessary to trigger Section 1.17. All it takes is the filing of “incorrect” information “without a reasonable basis for believing” that the information is, in fact, correct. This seems to say that any mistake in an application could subject the applicant to a very substantial penalty, even if the mistake is purely unintentional.

An AM licensee in Texas found out about this the hard way.

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Last month we reported on an Inquiry initiated by the FCC with respect to implementation of Deployable Aerial Communications Architecture (DACA) techniques. Those techniques include use of small unmanned aerial vehicles, weather balloons or high altitude long distance unmanned vehicles to restore communications capabilities in disaster situations. The Notice of Inquiry has now been published in the Federal Register, as a result of which the comment deadlines have been set. Comments are due by July 25, 2012, and replies are due by August 14.

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The need for a change reflects the very large number of players in the U.S. wireless device market.

We’ve been hearing for years about the growth of wireless technologies into every facet of our lives. Now we have proof, of a sort.

Every U.S. consumer product that contains a radio transmitter – a universe that includes car keys, Wi-Fi tablets, Bluetooth earpieces, cell phones, baby monitors, and much more – must be labeled with an “FCC ID,” a string of usually random-looking letters and numerals. This signifies the device has been certified as complying with FCC technical standards. The same certification is also required for most non-consumer radio-based devices that are mobile, portable, or unlicensed. (You can find the FCC ID on the underside of a wireless mouse or laptop, the lower back of an iPad or iPhone, or under the battery of an Android phone. Once you have it, you can pull up a lot of technical information at this web page.)

The FCC ID has two parts. The first three characters, called the “grantee code,” identify the company that obtained FCC certification, usually the manufacturer. Current grantee codes must start with a letter. Apple, for example, has code BCG; Microsoft has C3K. There are over 33,000 possible combinations. The rest of the characters, up to 14 of them, are chosen by the company, usually to denote a particular model of device.

The FCC is running out of grantee codes.

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Coalition asks FCC to adopt service rules at 41-42.5 GHz.

The Fixed Wireless Communications Coalition wants the FCC to adopt new rules for fixed microwave service in the 41-42.5 GHz band.

Almost every new service nowadays involves some degree of sharing, and this band is no exception. The 41-42 GHz segment is allocated not only to the Fixed Service – spectrum-speak for point-to-point microwave links – but also for Fixed Satellite Service downlinks, plus broadcast satellite and a few additional services. The adjacent 42-42.5 GHz region has no Fixed Satellite Service allocation, but does have the same allocations for the Fixed Service, broadcast satellite, and others. To date there has been no actual licensing in either part of the band.

Fixed Service users are willing to share the lower part of the band with satellite interests, according to the FWCC. It points out that sharing arrangements between the satellite and fixed microwave services are highly asymmetrical, tipped strongly in the satellite industry’s favor, so that sharing will have relatively little impact on satellite operations. In both parts of the band, though, the FWCC asks the FCC to follow through on an earlier proposal to delete the broadcast satellite allocation, on the ground that its continued presence would make sharing impractical.

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Going beyond ordinary auctions, an FCC working paper proposes a new approach based on mathematical game theory.

The FCC is looking at a new way of allocating radio frequencies.

One of the FCC’s most difficult jobs is squeezing an ever-growing number of users into a fixed amount of spectrum. The variety of radio-based applications keeps growing, but the amount of spectrum suitable for each application is more or less fixed. True, engineering advances keep opening ever-higher frequencies, but the physics of radio waves limits those very high frequencies to a relatively narrow set of applications. Most new spectrum users must fit in and around the incumbents.

The parts of the spectrum best suited to most applications, very roughly from 30 MHz to 30 GHz, are complexly occupied. A band in this region may have primary and secondary allocations, under which secondary users are obliged to protect the primary users from interference, and must accept interference from the primary users. There may be multiple co-primary and/or co-secondary services, with those at the same level required to protect one another. The band may also have one or more types of unlicensed users, who must protect everybody else except each other, and must accept whatever interference comes their way. Much of the FCC-regulated spectrum is also shared with the U.S. government, which adds further layers of complexity.

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Uncharacteristically for the FCC, the technical reasoning does not stand up to close study.

The FCC has turned down a request to use a narrower bandwidth than the rules require.

Narrower bandwidth? No, it’s not a typo.

The decision turns on what may be the single most-used section in the entire five-volume FCC rulebook. The lawyers and engineers call it Section 15.247, but most people know it by the vast range of unlicensed products this rule has made possible: Wi-Fi, Bluetooth, modern cordless phones and nursery monitors, self-reading electric meters, ZigBee industrial equipment, wireless headphones and speakers, remote-control helicopters . . . the list is very long.

As originally adopted in 1985, Section 15.247 authorized “spread spectrum” devices. These, by design, disperse a signal over more bandwidth than the signal might otherwise require. The technique offers several advantages: less interference to other users than the equivalent narrowband signal; lower susceptibility to received interference; and encryption-like properties that make the signal difficult to intercept. Initially, Section 15.247 allowed two forms of modulation: “direct sequence” spread spectrum, similar to the CDMA modulation used by Verizon and Sprint for cell phone service, and frequency hopping, which is the basis for Bluetooth and many other technologies.

To enforce the “spreading” requirement, the FCC imposed a minimum bandwidth of 500 kHz, required the signal to be “deliberately widened” (the rules did not say by how much), and mandated a property called “processing gain,” which supposedly measured the device’s resistance to incoming interference. We add the “supposedly” because engineers in those days disagreed vehemently on whether the permitted tests for processing gain in fact measured that property, and indeed whether they measured anything useful at all.

In the meantime, demands for speed in wireless devices kept increasing.

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Commission seeks input on Deployable Aerial Communications Architecture techniques.

When communications fail in the midst of a disaster, who can you call? Trick question: most often, you can’t call anyone because, as the question assumes, communications have failed.

But the Commission has now taken a preliminary step toward addressing the problem that gives rise to that assumption: as we predicted last year, the FCC has released a Notice of Inquiry (NOI) looking toward implementation of Deployable Aerial Communications Architecture (DACA) techniques. 

DACA techniques are designed to assist, in emergency situations, with the restoration of communications not just to first responders, but also to consumers.  Think small unmanned aerial vehicles (SUAV), weather balloons, high altitude long distance unmanned vehicles (HALE), and deployable suitcase systems.  The idea is to come up with gear that can be deployed during the first 72 hours after a disaster to help ensure communications capabilities without requiring deployment of special user devices. 

The Commission has already sought public comment on DACA, from which the Public Safety and Homeland Security Bureau prepared a White Paper on the subject.  The NOI is the next procedural step through which the FCC is looking to develop a record on which to base a set of DACA regulations.

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New rules authorize body-worn networks for medical monitoring and treatment.

It was impressive enough when medical engineers started mass-producing complex devices for use inside the human body. Now those devices are talking not only to the physician, but also to each other.

The FCC has authorized Medical Body Area Network (MBAN) devices that will operate in the 2360-2400 MHz region, immediately below the heavily-used unlicensed band that houses Bluetooth, and most Wi-Fi, along with many other applications. We told you about the proposed rules three years ago. The new Report and Order took a while because, like all useful spectrum, this band already has incumbent users, many of whom have to be protected.

An MBAN, as the FCC envisions it, is a little like a cellular wireless system in miniature, worn on a patient’s body. Sensors around the body monitor various functions, depending on the patient’s needs, and communicate their data to a central hub, worn by the patient or located close by. The hub aggregates data from the various sensors, and transmits those data using the health care facility’s network (possibly over Wi-Fi or Ethernet) to a central control point, from where the data are made available to the professional staff for interpretation and appropriate response.

The 40 MHz identified for MBANs is a lot of spectrum, and moreover is located in the “sweet spot” of frequencies best suited to mobile communications. The FCC defends its allocation of this wide swath by explaining that the need to avoid interference to other users will limit the frequencies available at any given time and place. Moreover, it says, adequate bandwidth will both increase reliability and allow room for multiple vendors, thus increasing competition and reducing costs.

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Last month we reported on an FCC action that may mark the end of the decade-long “white space” proceeding authorizing the operation of some unlicensed devices in the broadcast television bands. The Commission’s Third Memorandum Opinion and Order (3rd MO&O), released in early April, disposed of a handful of petitions for reconsideration of the agency’s 2010 decision which had in turn tweaked technical “white space” specs adopted back in 2008. The 3rd MO&O has now been published in the Federal Register, which means that, barring any extraordinary intervening event (like the issuance of a stay – the approximate likelihood of which is pretty much zero), the rules as modified last month will take effect on June 18, 2012. 

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Unlicensed device users at 902-928 MHz challenge LMS provider Progeny’s test results.

We reported back in February about a licensed service provider being required to demonstrate that its operation would not cause unacceptable interference to unlicensed devices. This is unusual. The FCC rules ordinarily require an unlicensed device to accept any and all interference from any source. But certain technologies used in the licensed Location and Monitoring Service (LMS) at 902-928 MHz are uniquely subject to a reversal of the usual priority. Those LMS licensees must demonstrate through actual field tests that their systems do not interfere with unlicensed devices.

When the FCC recently granted a technical waiver to LMS provider Progeny, it specifically required field tests to show that the waivered system does not cause unacceptable levels of interference to unlicensed devices in the same band. Among the thousands of unlicensed applications in the band, the FCC mentioned “smart grid” applications, including remote meter reading and utility load management, as well as cordless telephones and wireless local area networks. Other unlicensed uses of the band include wireless Internet access, ZigBee industrial controls, and a vast host of wireless consumer devices.

Progeny has since filed its test report. But commercial users of unlicensed devices have come forward to criticize the study. (Consumer devices, such as cordless phones, may have a similar potential for interference, but so far consumers and their advocates have remained silent.) Progeny, the commercial users say, used too few unlicensed devices, the devices Progeny used were non-representative, and the conditions used in the testing were artificially rigged to understate interference. Samples of such critical comments may be read here, here, and here. Progeny, needless to say, disagrees with its critics.  (Interested readers may find the entire FCC docket by searching for Docket No. 11-49 at the FCC’s ECFS webpage.)

Although the comment cycle on Progeny’s test report has officially closed, the FCC is accepting ex parte filings. But not for long; we expect a decision soon. Those interested in either challenging or supporting Progeny’s test results should do so promptly.

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FCC seeks comment on unlicensed operation in three bands.

The FCC’s Further Notice of Proposed Rulemaking on outdoor and in-tank radars in the 5.925-7.250, 24.05-29, and 75-85 GHz bands has now appeared in the Federal Register. As regular readers realize, that establishes the official deadlines for anyone wishing to chip in their two cents’ worth.  Comments are due on May 30, 2012 and reply comments on June 29.

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In Rorschach-like NAL, FCC proposes whopping $25,000 (ouch!) fine for impeding an investigation into the Google Wi-Spy controversy.

In a Notice of Apparent Liability (NAL), the FCC has proposed to fine Google. Not, mind you, for the alleged misconduct the Commission first set out to investigate. Rather, Google would be fined for allegedly impeding that investigation – even though the FCC now pretty much concedes that no violation took place. But it’s hard to tell exactly what happened, because large portions of the FCC’s published order are redacted. One thing that wasn’t redacted: the proposed fine. That would be the princely sum of $25,000.

This much is known: between 2007-2010, Google collected Wi-Fi network data all over the world in support of its Street View project. In addition to providing totally bitchin’ online photos of just about anywhere in the world, the Street View project collected network data to support various location-based services. But in collecting those data about available networks here, there and everywhere – including home wireless networks – Google also happened to collect the actual content of various unencrypted communications carried over these networks (i.e., “payload” data) – things like e-mails, text messages, passwords, Internet usage history, and other potentially sensitive personal information.

When word of this surfaced, governments everywhere – federal, state, foreign – launched (with considerable fanfare) investigations, on the theory that the unauthorized collection of that kind of private data couldn’t possibly have been legal.

Our federal government sicced an agency tag-team on Google. First, the Federal Trade Commission (FTC) took a close look at Google’s activities, but closed down its investigation without finding any problems.  The FTC came away convinced that Google didn’t plan to use any of the payload data, would be deleting that data pronto, and was taking steps to improve “its internal processes”. Nothing to look at here, folks.  Show’s over. Just move along.

Then the FCC jumped in.

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If you live in Nottoway County, Virginia, you’re in luck.

The FCC has authorized TV white space database coordinator Telcordia to offer service within Nottoway County, Virginia, a mostly rural area toward the southern part of the state. Initial operations will include 20 sites serving rural schools and households. The action comes less than a month after the FCC approved Telcordia’s database, and four months after the first white space operations were approved for Wilmington, NC by coordinator Spectrum Bridge, Inc.

Included in the Nottoway County order are special procedures for registering wireless microphones entitled to protection from white space devices.

We assume the pace of approvals will pick up. At the current rate, we calculate it will take until the year 2797 before white space systems are fully deployed. By then, we expect to be communicating telepathically via devices wired into our nervous systems. Assuming, of course, the FCC can free up enough spectrum.

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Putting together AM radio transmitter kits and selling the end product results in $7,000 payment.

The FCC has always been friendly to electronics hobbyists, in part (we suspect) because many of the FCC’s engineers got their own start that way. A lot of hobbyists get their start, in turn, by assembling commercial kits, before moving on to design and build their own gear from scratch. 

Kits could present a problem under the rules that require FCC certification for most small transmitters. It would be inconvenient, to say the least, for each hobbyist to have to test his or her finished product for compliance and get it certified by the FCC. Anticipating the problem, the FCC has long provided an exception for kits. Consumers are free to buy most kits, assemble them, and use the resulting device without paying any attention to the FCC.

Kits, in other words, are essentially unregulated. One Richard Mann dba The Antique Radio Collector tried to stretch this exception.

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Action follows licensee’s failure to pay $430,000 in filing fees when seeking an extension of the construction deadlines.

The FCC has denied reconsideration of an order that terminated 2,456 fixed point-to-point microwave licenses.

Metropolitan Area Networks (MAN), obtained the licenses between January 2008 and March 2009. FCC rules require a link to become operational within 18 months of the license grant, or the license automatically terminates. For MAN, the deadlines fell between July 2009 and September 2010. But before the earliest of those dates, in June 2009, MAN filed applications to extend all of the deadlines until March 2011. It explained that the microwave links were intended to support TV “white space” systems, and that delays in the FCC’s finalizing of the white space rules required the extension.

Ordinarily an application to extend a microwave construction deadline must be accompanied by a filing fee, which at that time was $175. The total filing fees for all of MAN’s applications works out to almost $430,000. Understandably, MAN filed a simultaneous request for a waiver of all but one of the filing fees. But the FCC’s rules state that, when a fee waiver is sought, the filing fees to be waived must accompany the waiver request; if the waiver is granted, the fees will then be refunded. MAN paid the fee for one application, but not the others.   In July 2009, the FCC dismissed all but one of the extension requests for failure to pay the fee.

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Minor changes may signal an end to almost a decade of rulemaking.

The FCC has released yet another decision in its long-running effort to implement rules allowing unlicensed “white space” devices in the television bands. The latest revision does not represent any wholesale changes, but will make it easier for some devices to operate.

White space devices (TV Band Devices or TVBDs, in the FCC’s nomenclature) rely on the fact that every location has some TV spectrum not being used. Those vacant frequencies typically show up as white spaces on a map of spectrum occupancy – hence the name. Technical studies show that properly controlled unlicensed devices can use these channels without causing interference to TV operation and other authorized users, including wireless microphones.

Following a Notice of Inquiry late in 2002, and a 2004 Notice of Proposed Rulemaking, the FCC first adopted rules allowing white space devices in 2006, but left the technical specifics for a later date. Those came in 2008, and then in 2010 the FCC responded to petitions for reconsideration with a number of revisions. Now the FCC has addressed petitions for reconsideration of the 2010 order.

The rules categorize each white space device as either fixed or mobile. A fixed device must have its location either professionally programmed in or determined by an on-board GPS device, and is subject to limits on operating power, antenna height, and antenna gain limits. Before operating, it must query a database of available spectrum for its location. A mobile device may similarly use GPS to determine its location and then query a database (Mode II devices); alternatively, it can contact another white space device that will in turn query the database (Mode I devices). The FCC has so far approved ten private companies to administer the databases, of which two have completed testing to the FCC’s satisfaction.

In its recent order disposing of the petitions for reconsiderations, the Commission provided the following changes and clarifications:

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Don’t be surprised when Broadband the FCC Cat pops up on your screen.

The Commission has long bemoaned the fact that the Great Unwashed are “woefully ignorant” of the nitty-gritty details of their Internet access. Not for long. That bell you just heard was signaling the start of classes at the University of FCC, Online Division. Attendance is required. Prepare to get schooled.

In a surprising move – made all the more surprising by the low-key way in which it was disclosed – the Commission is taking aggressive steps to correct the rampant problem of high tech know-nothingism.

Meet NOITALS – the Nationwide Online Information Tracking and Logistics System. (Apparent pronunciation: “KNOW-IT-ALLS”.) In a public notice announcing, among other things, an expansion of the 2012 Measuring Broadband America Performance Study of Residential Broadband Service in the U.S., the Commission mentions NOITALS, pretty much in passing, without any fanfare at all. The Commission plans to use NOITALS to measure everybody’s Internet access speed, along with other parameters of Internet performance). 

How’s it going to do that? 

It seems that NOITALS enables the Commission to see what’s going on in each individual computer, nationwide, without the intervention of the computer’s user.

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Level probing radars at 6, 26, and 80 GHz would have adequate power for a wide variety of industrial applications.

The FCC has proposed new rules for “level probing radars” (LPRs) in three bands: 5.925-7.250 GHz, 24.05-29 GHz, and 75-85 GHz. LPRs are downward-aiming radars used to determine levels of materials at industrial installations. Some are mounted inside those enormous tanks that dot the industrial landscape, to tell the operators how much liquid is inside. Other LPRs are used outdoors – at quarries, for example, to measure piles of gravel, or at nuclear power plants, to monitor the water level in the ponds used to store highly radioactive fuel rods. There are thousands of potential applications. The new rules would apply equally to in-tank and outdoor radars.

The FCC is easing its way into this area very gradually. More than two years ago, it proposed rules to allow in-tank radars in the 77-81 GHz band, and granted a waiver pending the rulemaking. Without having reached a decision on the original questions, the present Further Notice of Proposed Rulemaking expands the proceeding to add outdoor LPRs and more frequency ranges. Up in the nosebleed part of the spectrum, the FCC had earlier proposed radars for airport use at 78-81 GHz, to detect debris on the runways, and a relaxation of the vehicle radar rules at 76-77 GHz to allow non-vehicle applications and higher power.

An LPR typically transmits a train of very short pulses, with relatively long separations in between. For historical reasons, the FCC’s technical rules are more hospitable to continuous transmissions, such as those used to carry voice and data signals. The same rules, when applied to a pulsed transmission, effectively require operation at greatly reduced power. That lower power is sometimes adequate for measurement of highly reflective surfaces, but otherwise has largely prevented the successful operation of LPRs.

The newly proposed rules, being specifically geared to LPRs, should allow the downward-aiming transmitter to provide adequate power for a wide variety of applications. To protect other spectrum users from interference, the FCC has proposed much more stringent limits on radio-frequency emissions from the sides of the device and upward. Those stray emissions can be due either to properties of the antenna or to reflections from the material being measured. In the 24.05-29 and 75-85 GHz bands, they are limited to the same very low levels that are permitted for an iPad or a digital toy: 70 billionths of a watt. In the 5.925-7.250 GHz band they must be lower still, at about 3 billionths of a watt.

Comments and reply comments will be due 30 and 60 days, respectively, after publication in the Federal Register. We will let you know when that happens.

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 New rules clear way for denser device concentration, higher data rates.

The FCC has relaxed the rules for unlicensed PCS.

If you have no idea what unlicensed PCS is, you have a lot of company. Even among spectrum experts.

Most voice calls from a cell phone don’t actually use cellular frequencies, which are a little above 800 MHz, but instead use higher frequencies allocated to the Personal Communications Service (PCS) in the vicinity of 1.9 GHz. Some PCS frequencies carry signals from the tower to your handset, while other frequencies carry signals the other way, from the handset to the tower. The two have to be kept well separated, lest the transmitter in the handset overpower its own receiver. Of the several ways to achieve this separation, the FCC chose the simplest: a “guard band” 15 MHz wide between the tower-to-handset and handset-to-tower frequencies. But the guard band need not be completely idle, and in fact is used for multiple purposes. One segment, at 1920-1930 MHz, is available on a shared basis for unlicensed applications: hence unlicensed PCS, or in Washington-speak, UPCS.

Unlike some of the other unlicensed bands that house Wi-Wi, Bluetooth, ZigBee, and thousands of consumer applications (our own favorite is a wireless diaper wetness sensor), the UPCS band is lightly populated, mostly with cordless phones. The FCC rules for the band include a complicated “spectrum etiquette” – a listen-before-talk scheme that minimizes the odds of one device stepping on another’s transmission. But the benefit comes with downsides: added equipment costs, and an upper limit on the number of devices that can successfully operate in a given environment.

The new FCC order does not eliminate these technical rules, but it simplifies them considerably. The result will allow more devices to work in close quarters, and will allow devices to transmit at higher data rates. The new rules are closer to those used in many other countries, which simplifies life for global manufacturers. The FCC also cleaned up provisions that were needed when the 1920-1930 MHz band was transitioning from fixed microwave to UPCS and the other current applications, but are no longer needed.

All the details are here.

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Operations are still limited to Wilmington, NC.

The FCC has announced that Telcordia Technologies, one of the ten database managers for “white space” operations, has been approved to provide service to the public. See the details here. Telcordia, which completed its test in January, is the second database manager to secure this approval.   Eight more are waiting in the wings.

But most of the public that Telcordia is authorized to serve will have to wait for that service. For now the FCC has approved white space operations only in Wilmington, NC.

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FCC warning follows much-publicized incident on a Philadelphia bus.

The FCC has issued one of its periodic warnings against selling or using jammers to interfere with cell phones, GPS, Wi-Fi, or any other radio-based service.

The story this time begins with a guy named Eric who rides the buses in Philadelphia. Whenever someone on the bus disturbed his tranquility by talking on a cell phone, Eric fired up his pocket-sized cell phone jammer. The caller’s phone stopped working, and Eric resumed his internal dialogue undisturbed. “A lot of people are extremely loud,” explained Eric, “no sense of just privacy or anything.  When it becomes a bother, that’s when I screw on the antenna and flip the switch.”

One of Eric’s fellow passengers works for a local TV station. “He’s blatantly holding this device that looks like a walkie-talkie with four very thick antennae,” she reported to her colleagues in the news department. “I started to watch him and any time somebody started talking on the phone, he would start pressing the button on the side of the device.”  A news crew went undercover and caught Eric in the act.

It must have been a slow news day in Philadelphia. The story went semi-viral, drawing both support and condemnation. Some people, along with Eric, believed that jamming cell calls is not illegal. 

The FCC wants you to know that’s wrong.

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Consent decree resolves claim of failure to comply with digital device rules.

For the second time in less than a year, the FCC has moved against a manufacturer of audio gear for violation of its “digital device” rules.

Digital equipment – which nowadays includes almost everything with an on/off switch – generates internal signals that operate at radio-type frequencies. Inevitably, some of that energy leaks out in the form of radio waves. Because the leakage has the potential to interfere with radio communications, the FCC sets maximum limits, and mandates procedures manufacturers must use to establish and document their compliance with those limits.

A company called American Music and Sound (AMS) got in trouble with the FCC for not having complied with those procedures. In entering into a consent decree, it did not admit wrongdoing, but did agree to a “voluntary contribution” of $72,000 to settle the charges. This follows a similar case last May.

The AMS case is troubling because the company manufactures gear for professionals, not consumers, which made it subject to a relatively painless regulatory regime. Compliance with respect to any particular device consists of measuring that device’s radio-frequency emissions (which can be ten times higher than for a consumer product), and putting the test results in a drawer. There are no requirements for the test lab, no submission to the FCC, and no special labeling. (Procedures for consumer products are only a little more involved.)

Other manufacturers might benefit from AMS’s misfortune. If you (a) make a product having any digital components, and (b) do not qualify for a small handful of exceptions, then you are regulated by the FCC and you ignore its rules at your peril.

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With passage of the Middle Class Tax Relief and Job Creation Act, incentive auctions for spectrum repurposing take a great leap forward.

After more than a year of back-and-forth, it looks like our friends on Capitol Hill have finally come to terms on a plan to encourage – through “incentive auctions” – the so-called “repurposing” of spectrum now occupied by TV broadcasters to make it available for wireless broadband services. Snuggled in the middle of the payroll tax cut extension act, the long-awaited spectrum auction authority has been enacted and sent to the President who has said that he will sign it promptly.

(In signature Washington style, the curiously-named “Payroll Tax” bill – formal name: the Middle Class Tax Relief and Job Creation Act of 2012 – dedicates a mere three sentences to tax issues and more than 250 to other matters, like Medicare reimbursements, unemployment benefits, federal employee retirement rules . . . and the federal spectrum policy and telecommunications funds.)

Title VI of H.R. 3630 of the Act includes the particular provisions authorizing incentive auctions of broadcast spectrum and creating an interoperable public safety network. (We plan to provide a link to the Act as finally signed by the President when it’s available.)

The good news is that most, but not all, parties with some stake in the game received at least part of what they were hoping for. Of particular interest to broadcasters: the act requires the FCC to make “all reasonable efforts” to preserve existing coverage of TV stations; prohibits the involuntary moving of broadcasters from UHF to VHF, or from high-band VHF to low-band VHF; provides for a one-time auction and a relocation fund of $1.75 billion; and requires coordination with Canada and Mexico on border concerns.

The bad news, at least for low power TV licensees: the definition of “broadcast television licensee” for the purposes of incentive auctions is limited to full-power television stations and “Class A” television stations. LPTV licensees get only a single provision stating that nothing alters their spectrum usage rights. That language will provide little comfort to some in view of the secondary nature of LPTV operations. Still, the language can be cited by LPTV interests as a Congressional directive to the FCC not to ignore the fate of LPTV stations if and when the TV broadcast spectrum is truncated.

Also of note:

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Request for input follows grant of waiver to Location and Monitoring Service licensee that shares unlicensed band.

 The FCC has asked for comment on whether the licensed Location and Monitoring Service (LMS) at 902-928 MHz will cause interference to unlicensed devices in that band.

The request is startling, to those of us who work on spectrum issues. Part 15 of the FCC rules, which governs unlicensed devices, incorporates a fundamental tenet of U.S. spectrum policy: an unlicensed device must accept interference from any source, and may not cause harmful interference to any licensed service. Every unlicensed device bigger than a few inches carries a label saying just that. Why, then, is the FCC asking whether licensed LMS operations interfere with unlicensed use?

When the FCC adopted the current LMS rules in 1995, it estimated that several million Part 15 devices were using the 902-928 MHz band. The FCC mentioned the examples of cordless telephones, wireless local area networks, and automatic reading of utility meters. Recognizing the “enormous benefits” of those devices, the FCC added two provisions that remain unique in its rulebook. One specified that Part 15 devices meeting certain safe-harbor tests would be deemed not to cause harmful interference to certain LMS systems, even if they did in fact cause such interference. 

The other provision, of more immediate interest here, requires certain LMS systems to demonstrate through actual field tests that they do not cause “unacceptable levels of interference” to Part 15 devices.

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Bill extending payroll tax cut requires reports on frequency coordination.

Among the little surprises buried in the 250+ page legislation to extend the payroll tax cuts is a provision instructing the General Accounting Office and the FCC to investigate the use of the 11, 18, and 23 GHz fixed microwave bands.

Currently these bands, along with some others, are licensed on a “link by link” basis. An applicant sends the coordinates and elevations of its proposed stations, preferred frequency band, and other technical data to a frequency coordinator, who tries to fit the new user into the band without threatening interference to the incumbents. The process usually works. Few applicants need be turned away, and unexpected interference from one system to another almost never happens. The arrangement also results in highly efficient use of the spectrum. But it does not bring in revenues to the Treasury, as auctions do.

The new bill (the relevant portion of which is reproduced below) requires the FCC to report on the number and percentage of common carrier applications in these three bands that fail to make it through frequency coordination. Separately, GAO must assess whether the current rules provide “adequate incentive” for use of the bands, and whether they “ensure that the Federal Government receives maximum revenue for such spectrum through competitive bidding.” The bill further instructs GAO to consider adjacent spectrum that has been auctioned (which is just the 24 GHz band), and also the present and projected failures of frequency coordination in markets having high demand for common carrier use of these bands.

The object, apparently, is to lay the groundwork for auctioning these bands. But the bill has some odd features.

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U.S. spectrum agency finds there is no practical way to mitigate interference to GPS.

LightSquared Inc. holds mobile satellite licenses that it wants to use for delivering terrestrial (tower-based) broadband service. But probably not for much longer.

LightSquared’s proposal is controversial in part because its frequencies are close to those transmitted by GPS satellites, and so can threaten interference to GPS receivers. Two weeks ago, we reported on LightSquared’s request for an FCC ruling that GPS users are not entitled to protection from LightSquared’s interference. We noted then that the federal government, which both operates the GPS satellites and also uses GPS for many safety-critical operations, had not yet weighed in, and that when it did, its views could well settle the issue.

The federal government has now spoken. What it said was: No. In the FCC’s words, “NTIA, the federal agency that coordinates spectrum uses for the military and other federal government entities, has now concluded that there is no practical way to mitigate potential [LightSquared] interference at this time.”

LightSquared holds a provisional waiver that authorizes it to provide terrestrial service, conditioned on its first resolving the GPS interference issues. With NTIA having determined  that those issues cannot be resolved to its satisfaction, the FCC will soon release a formal proposal to terminate LightSquared’s authority.

The Fat Lady has not sung, quite yet. But she is warming up backstage.

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A detailed order squelches amateur radio operators’ third attempt to derail a lifesaving technology.

The FCC has okayed the grant of dozens of licenses to allow police and fire departments around the country to operate a surveillance robot called the Recon Scout. The action came over strong opposition from members of the amateur radio community, who have fought deployment of the Recon Scout at every stage.

We described the device here: the size of a beer can with a wheel on each end, and a TV camera peering out. The Recon Scout is light enough in weight for a non-athlete to throw into a third-floor window, yet survives repeated 30-foot drops onto concrete. The associated wireless hand-held controller has a joystick to drive and steer the unit, and a TV screen to show what the camera in the unit sees. The units allow users to send in “eyes” where it’s not safe for people to go. The U.S. military has been working with the device in Iraq and Afghanistan for several years to rave reviews.

Police and fire departments, and security personnel in critical infrastructure industries, wanted access to the same technology. Their expected uses variously include checking a building prior to forced entry, locating hostages and hostiles before a rescue attempt, searching for survivors in a burning building, and inspecting the site of a chemical or nuclear release. Unlike military applications, which are outside FCC jurisdiction, adoption by state and local first responders requires two kinds of FCC approval. First is an FCC certification that establishes the device complies with applicable technical rules; second are FCC licenses needed to operate the units, much like police and fire departments’ licenses for their two-way radios.

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FCC requests public comment on results of Telcordia system testing

“White space” wireless operation on locally vacant TV channels requires that devices consult a database of users entitled to protection, including broadcast TV stations and some wireless microphones. See a list here. The FCC has authorized ten companies to provide and operate those databases. The second such company, Telcordia Technologies Inc., recently completed a 45-day test that began in December.

The FCC now seeks public input on the Telcordia results, which are posted here. Comments are due on February 16, 2012, and reply comments on February 23.

In the meantime, white space operations were scheduled to begin last week in Wilmington, NC, using a database provided by Telcordia’s competitor, Spectrum Bridge, the first to complete testing.

There are still eight database providers to go. We will keep track so you don’t have to.

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Back in December we reported on the expansion of the Medical Device Radiocommunication Service (MedRadio) to permit use of 24 megahertz of spectrum in the 413-457 MHz range for wideband devices implanted in the body. The new rules have now been published in the Federal Register, which means that they become effective on February 27, 2012.

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This time, a ground-penetrating radar gets the nod

The FCC has issued yet another in a long series of waivers for ultra-wideband imaging devices.

This time the product is an instance of “ground-penetrating radar” (GPR), one of eight species of ultra-wideband equipment approved by the FCC back in 2002, each with its own set of technical restrictions. This particular GPR unit is towed behind a truck at highway speeds to inspect roadbeds and bridges for hidden defects.

The device fails to comply with two of the detailed rules that govern ultra-wideband devices: it generates a wide bandwidth by quickly stepping from one frequency to another, rather than transmitting on many frequencies at once; and it complies with the applicable emissions limits only when the frequency stepping is active, rather than stopped on one frequency, as the rules require. The waiver applicant, Curtiss-Wright Controls, Inc., explained why these departures are necessary to achieve better performance, and why they do not increase the threat of interference to other spectrum users.

Two opponents argued, in effect, that a waiver would allow manufacturers to concentrate radio-frequency energy in sensitive bands, including the band used by GPS satellites. The FCC responded with conditions on the waiver that prevent the device from using any one frequency for longer than 2 microseconds at a stretch, and more than 0.033 percent of the time overall. Other conditions require the device to avoid certain sensitive bands. With those limitations in place, the FCC determined, the Curtiss-Wright device will be no more interfering than a compliant GPR.

We have written before about the disadvantages of regulating by waiver: delays in getting a product to market (the Curtiss-Wright proceeding took 19 months, about par for the course), high legal expenses, unpredictability as to outcome and, in the end, a confusing patchwork of permitted and non-permitted devices. Not that the FCC should stop granting waivers to applicants that make a good case. Given the fragmented nature of the ultra-wideband rules, the waivers are the only way the industry can evolve to meet customers’ demands. Far better, though, would be an overhaul of the ultra-wideband rules that drops unnecessary restrictions and distinctions, and instead authorizes any ultra-wideband device that presents no realistic threat of interference. We understand that would take political finesse, as certain influential spectrum users have a history of overstating the risk of interference to their respective services. But we think the task is worth the effort. A single, coherent set of rules would be a big boost to an industry that, from the beginning, has shown an enviable flair for technical innovation.

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Devices will be used to detect runway debris; other applications are possible.

The FCC seeks comment on radar operations in the 78-81 GHz band, and in the meantime, has granted a waiver for limited use.

There has been a lot of regulatory interest lately in radar devices above 75 GHz, up in the “nosebleed” portion of the spectrum. Back in 2009, the FCC considered, and later granted, a waiver to allow the Atlanta airport to use 77-76 GHz radars to track aircraft and vehicles on the ground. The beginning of 2010 saw a proposal to use 78-81 GHz to measure the levels of substances inside large industrial tanks; there, too, the FCC granted a waiver, while a rule change is still pending. Last May, the FCC proposed to relax the rules for vehicle radars at 76-77 GHz, which provide for automatic braking when the car senses an obstacle ahead.   That rule, too, is still under consideration.

Now the FCC has revisited the airport environment, with a proposal to authorize 78-81 GHz radars to detect “foreign object debris,” or FOD – apparently a term of art in the airport business. We are all in favor of FOD detection, remembering that a stray piece of metal on the runway, dropped from an earlier plane, tripped up an Air France Concorde in 2000 at the cost of 113 lives. Apparently aircraft shed parts more often than most of us realize. Other common forms of FOD include misplaced tools, equipment and supplies, rocks and pavement fragments, luggage, and wildlife.

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First white space database and end-user devices to begin operation in January in Wilmington, NC.

The FCC has approved the first “white space” database and the first end-user devices to begin operation on January 26, 2012, initially limited to the Wilmington, NC area.

White space devices are supposed to provide Wi-Fi-like services, only better, using locally vacant TV channels. Successful operation will depend on complex databases to help each device identify channels on which it can safely operate, without causing interference to TV stations, radio astronomy, wireless microphones, and several other services entitled to protection. We reported just last month that the first of ten FCC-approved database providers, Spectrum Bridge Inc., had posted the results from a 45-day test of its system. The FCC has now announced its acceptance of that system, and simultaneously, its approval of an end-user white space device that operates in conjunction with the Spectrum Bridge database.

Operators of the various services protected against the devices – see a list here – should make sure their facilities are properly listed in the database.

White space operations will be limited at the outset to the environs of Wilmington, NC. Wilmington was also the city chosen by the FCC a few years back for an early trial of the cut-over from analog to digital TV. We’re not sure why the FCC keeps putting Wilmington’s TV reception at risk. Perhaps the city is an unheralded center for high-tech early adopters. Or the home of someone whom the FCC just doesn’t like.

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Lockheed Martin wants a new RFID rule at 433 MHz that allows higher power and imposes fewer restrictions.

Our friends over at Lockheed Martin have asked the FCC to update its RFID technical rules.

RFID (short for radio frequency identification) is one of those technologies that most of use every day without giving it much thought. Automatic toll collection, variously branded E-ZPass, I-Pass, Fast Lane, etc., is one example. Many workplaces use electronic keys in the form of a card that, when touched to a sensor, unlocks doors and starts elevators. Modern cars will not start until the key makes a successful radio communication with a sensor in the dash.

All of these devices work the same way. A “reader,” such as the one mounted over the E-ZPass toll lane, sends out a radio signal. A “tag,” such as the little box mounted on a car’s windshield,  accumulates energy from that signal, and when it is sufficiently charged, uses the stored-up power to transmit the tag’s specific ID number back to the reader. The reader passes that number on to a database for appropriate action, such as debiting the driver’s E-ZPass account.

The FCC regulates this kind of RFID as an unlicensed device under Part 15 of its rules. (Another kind of RFID uses battery-powered tags for greater range.) A manufacturer must comply with either of two rule sections. One allows operation on any frequency above 70 MHz, but only at very low power, and only in short bursts with long waiting times in between. The other rule section allows longer transmissions and shorter waiting times, but can be used only to identify the contents of commercial shipping containers at ports, warehouses, and the like, and must use the band 433.5-434.5 MHz.

Lockheed Martin likes the 433 MHz band, which is becoming a global standard. It has asked the FCC to adopt a new, third rule that includes the following elements:

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New rules allow communication with implanted devices that help restore function to damaged nerves and muscles.

The FCC has authorized the use of 24 megahertz of spectrum in the 413-457 MHz range for wideband devices implanted in the body. Part of the FCC’s MedRadio service, these devices will help treat neurological injuries and disorders by monitoring and activating nerves and muscles to restore sensation and mobility. The action adopts proposals the FCC laid out back in 2009.

The original proponent for the rules, the Alfred Mann Foundation, describes the technology as an “artificial nervous system” that uses electric signals to improve or replace the function of a nervous system impaired by mishap or disease. Patients who might benefit include those suffering from traumatic brain injuries, spinal cord injuries, and various neuromuscular disorders. A person might have several implanted devices that together make up a wireless network, coordinated by an external programmer/controller. Because the devices must transmit a lot of information in short bursts, they require substantial bandwidth, up to 5 MHz. The 400 MHz band is suitable because signals in this range can propagate through body tissues. Authorized power levels are very low, no more than 25 microwatts.

The new devices can operate in four bands: 413-419 MHz, 426-432 MHz, 438-444 MHz, and 451-457 MHz. These, needless to say, are already occupied (as is virtually all of the spectrum below about 50 GHz). Current users include private land mobile, public safety, TV news, and amateur operators. Some of these parties claimed the implanted devices would cause them harmful interference, but the FCC disagreed, based on test results in the record. Some also feared that if their equipment caused interference in the other direction (i.e., interfered with the implanted systems), they would have to turn down power so as to protect the well-being of persons who have the devices installed. The FCC addressed this concern by making the implanted devices “secondary” to other licensed users. In English, this means the new devices may not cause harmful interference to, and must accept all interference from, other licensed services.

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Telcordia Tech testing to take off 12/7.

Last September we reported on the fact that one of the nine (oops, make that ten) white space database administrators had announced that its system was ready to have its tires kicked. That 45-day test has since wrapped up, and the Commission has since invited comments on the results. 

And now a second database administrator – Telcordia Technologies, Inc. – has given the word that it, too, is ready for testing . . . or at least it will be, as of December 7. That date will kick off Telcordia’s 45-day test period, during which members of the public are invited to run the Telcordia system through its paces to ensure that it does what it’s supposed to do. (In case you’ve forgotten, all white space database systems are expected to (1) correctly identify channels in the TV band that are available for unlicensed operation, (2) register facilities in that band that are entitled to protection, and (3) afford protection to authorized services and registered facilities as specified in the Commission’s rules.)

You can access the Telcordia system at https://prism.telcordia.com/tvws/home/trial starting December 7 (but not before) and running through January 20, 2012, possibly longer if the Commission determines that an extension is warranted. The Commission encourages the public to take the system for a test drive to make sure that it's doing what it’s supposed to do. Items available for testing include a channel availability calculator, and separate utilities to register: MVPD receive sites; broadcast auxiliary temporary receive sites; fixed TVWS devices; and wireless microphones. Obviously, if any inaccuracies pop up, they should be reported to Telcordia pronto.

Check out our previous posts for more background on the white space database administrator program.

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The first of ten database administrators has posted the results of a 45-day test.

We reported back in September about a test of the first database for “white space” devices meant to provide Wi-Fi-like service on unused TV channels. The database – developed by Spectrum Bridge Inc. – is intended to help prevent interference from those devices into TV receivers, wireless microphones, and other authorized users of the bands. The FCC invited public participation in a 45-day online test.

Spectrum Bridge has completed its trials and submitted a “summary report” about it to the Commission. The FCC, in turn, is now requesting public input on the test result and the summary report. The request includes links to the report and three attachments submitted by Spectrum Bridge. We have been unable to access the Spectrum Bridge report and attachments by using the links provided in the FCC’s release. Presumably this is just a slight technical glitch that the FCC will correct.  However, since the Commission’s notice came out just before the start of a three-day weekend, we thought our readers might appreciate some working links to the Spectrum Bridge materials now, to give them something to pore through over the long weekend. Here they are:

The Spectrum Bridge summary report

Attachment 1 – “Dashboard” (statistics concerning traffic to the Spectrum Bridge test site)

Attachment 2 – Registration Records

Attachment 3 – Comments

Attachment 3, in particular, makes for interesting reading. It reflects a number of comments, criticisms and inquiries submitted to Spectrum Bridge during the test, and Spectrum Bridge’s responses. Some of the problems identified in the test are troubling.  For instance, Spectrum Bridge’s database ignored, at least initially, some facilities whose licenses (a) appeared to have expired but (b) were actually still in effect because of pending litigation relative to renewal of the licenses.  But it does appear that Spectrum Bridge was responsive to the problems. We shall see.

Comments on the Spectrum Bridge report are due on November 28, 2011, and reply comments on December 5.

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House, Senate proposals – S.1784, H.R.3309, S.1780 and H.R. 3310 – look to increase transparency, efficiency, predictability of Commission’s activities

On November 2, Rep. Greg Walden (R-OR), Chairman of the Energy and Commerce Subcommittee on Communications and Technology, and Senator Dean Heller (R-NV) took the wraps off  legislation aimed at improving regulatory process at the Federal Communications Commission (FCC).  Just how might that be accomplished? According to the bills’ sponsors, by imposing a number of procedural constraints on the Commission that would force it to act more transparently, more efficiently, and within more predictable time frames.

As we’ve previously reported, over the last several years FCC process has at times been a source of bipartisan frustration.  Concern about the absence of certainty in how – and how fast – the process will run has developed into a mini-movement to revisit agency process.  Agency practices that have given rise to this alarm include: texts of orders not being released until weeks or months after their nominal adoption; “shot clocks” for agency action that are inconsistently applied (when they exist at all); unilateral control of the Commission’s agenda being wielded by the Chairman (allowing the Chairman to prevent action on matters that a majority of Commissioners might prefer to vote).

And, perhaps, the attention of a divided Congress is more easily attracted to an agency that asserts itself into areas where its statutory authority is at best indirect and, in the eyes of some, even nonexistent (hard to believe? check out the D.C. Circuit’s 2010 Comcast decision on net neutrality).

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Minor rule changes respond to court order, yet are unlikely to satisfy BPL opponents.

Regulating new technologies can be a slow business. So slow, in fact, that the regulatory process sometimes outlives the usefulness of the technology.

Take broadband-over-power-line (BPL), a technique for delivering Internet access over the same electric wires that come into the house to work the toaster. Early in the last decade, BPL was hailed as the long-awaited “third wire” that would provide real competition to the cable and phone companies for broadband Internet service.

The FCC initially put BPL on a fast track, at least by FCC standards. It released a Notice of Inquiry in April 2003, a Notice of Proposed Rulemaking in February 2004, and rules in October 2004 – just 18 months after the proceeding began. Trust us; this is blindingly fast. The FCC has not moved that quickly with a new technology in recent memory.

Not everybody liked BPL.

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A couple of weeks ago we reported on the Notice of Proposed Rulemaking (NPRM) looking into possible expansion of the use of auditory assistance devices in the 72-76 MHz band. The NPRM has now been published in the Federal Register. As a result, the deadlines for comments and reply comments have been set. Comments are due by November 4, 2011; reply comments are due by November 21.

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Staff-written white paper explores airborne technologies to maintain communications in the face of major disruptions.

The sequence is predictable: first the disaster, then the finger-pointing over the failure of emergency communications. We saw it on 9/11, Hurricane Katrina, and even the eventful Mineral VA earthquake, the one that toppled plastic lawn chairs miles away.

Now the FCC has issued a white paper aimed at solving the problem of communications in the aftermath of a disaster. The new acronym is DACA, for “Deployable Aerial Communications Architecture”: a set of techniques for hoisting a communications system to an altitude suitable for relaying signals. The paper mentions four specific approaches.

• Small unmanned aerial vehicles: hand-launched, battery-powered aircraft that fly at an altitude of about 500 feet. Think of those model helicopters they sell at the mall, but bigger.
• Weather balloon technologies that can carry a six-pound repeater package, although only for short periods of time.
• High altitude long distance unmanned vehicles that can operate for longer durations with heavier payloads. 
• Deployable “suitcase systems” that use pre-packaged portable transceivers loaded onto low-flying aircraft.

The white paper, though, leaves a lot of questions unanswered. The biggest omission, to us, is a failure to mention that none of the proposed DACA systems would operate on its own. Each of the options, rather, is a mechanism for relaying communications from the ground. But those ground-based communications in turn must depend on the same facilities that are vulnerable to damage, flooding, or power failure. The white paper does mention the importance of satellite communications in disaster scenarios, but satellite systems likewise merely relay signals between ground-based earth stations. Thus, even with DACA in place, communications systems remain vulnerable.

Also missing from the white paper is any detailed discussion of frequencies DACA systems might use without causing interference to whatever terrestrial systems remain operating. And we hope that future work acknowledges the important contributions of amateur radio operators to post-disaster communications, with provisions to improve the reliability of their efforts.

The white paper does contain an interesting new idea.

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Anyone can visit the test site to try out the white space channel availability calculator, the wireless microphone registration utility, and other functions.

Those long-promised “white space” devices, delivering super-Wi-Fi performance on locally unused TV channels, are moving a small step closer to reality.

The delay in actual availability – initial rules were adopted almost three years ago – results from the fact that these devices must protect several other services from interference. The main mechanism to achieve that protection is a set of databases that list the locations and frequencies of the services entitled to protection. A white space device is supposed to check in with a database for a safe frequency assignment before transmitting. The first of those databases is now ready for testing.

The services that qualify for protection, and which hence must be listed in the databases, are:

• broadcast television stations (including full power, TV translator, low power TV, and Class A stations);
• fixed broadcast auxiliary service links;
• receive sites (and received channels) of TV translator, low power TV and Class A TV stations and multichannel video programming distributors (MVPDs);
• private land mobile radio service and commercial mobile radio service operations
• offshore radio telephone service operations;
• radio astronomy operations at specific sites; and
• certain wireless microphone operations.

The FCC has approved ten database administrators to keep track of these services. The idea is for each administrator to set up its own separate database. Each of the ten will extract information on protected services from the FCC’s licensing databases, or from the rules (except for some MVPD and wireless microphone information, which must be entered by hand by interested parties). This information need be entered into only one database, which will automatically share that information with the other nine – so that, as a result, all ten reflect the same protected services. Similarly, no matter which of the ten databases a white space device chooses to consult, it should get back the same information on available channels.

That is the theory, at least. Coordinating ten very large, constantly changing databases, each of a different fundamental design, is likely to present problems in practice.

The first of the ten databases is now ready for a 45-day period of public testing. Beginning on September 19, anyone can visit this site to test the white space channel availability calculator, the cable headend and broadcast auxiliary temporary receive site registration utilities, and the wireless microphone registration utility. Unfortunately the all-important sharing function among databases is not yet ready to try out.

Give it a try, and let us know what you find.

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FCC proposal would allow Part 15 ALDs to provide simultaneous translation to non-handicapped users

The inability to understand a foreign language may not be a handicap, but the FCC is looking to expand the use of unlicensed auditory assistance devices in the 72-76 MHz band – previously restricted to amplification for handicapped persons – to include simultaneous language translation for both disabled and non-disabled persons.

Auditory assistance devices (also known as assistive listening devices, or ALDs) provide a variety of services. Generally, ALDs allow hard-of-hearing people to participate in events together with people with normal hearing.  Sound is transmitted wirelessly to a receiver, which amplifies the sound and delivers it to headphones, without disturbing non-users in the room.   

In large venues, ALDs are more effective than hearing aids, where the microphone is part of the device in the ear.  The further away the sound source is from the microphone, the more difficult it is to produce clear sound and to mask out unwanted distracting sounds.  With an ALD, the microphone or other audio input is located at the source of the sound, where it is most effective, and a signal is transmitted wirelessly to listeners.  ALDs are found in theaters, museums, and other public places and are in many instances required by disability laws.  (Personal systems are also permitted for those who want and can afford them.)

There are two flavors of ALD.

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One small step for white spaces technology . . .

The long-running, slow-paced white spaces proceeding has quietly moved ahead with OMB approval of the “information collection” requirements of Sections 15.713, 15.714, 15.715 and 15.717. Notice of that approval has just been published in the Federal Register. That means that the FCC may implement those requirements, effective now.

But don’t run down to your local Radio Shack looking for miracle white spaces devices just yet. Before the Commission can start to unleash the power of the white spaces, it’s got to settle on a database design. While the Commission has at least identified its initial corps of database managers – originally a nine-member team to which a late-arriving Microsoft was recently added as a tenth – the system which those managers will be charged with implementing is still a work in progress.

Check back here for updates.

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Group that decries hidden interests keeps its true interests well hidden.

Here in Washington, we’re used to a certain amount of hypocrisy. It’s part of the atmosphere, like exhaust fumes from the high school tour buses.

But once in a while even we get taken aback. No, not about the debt-limit debate, although that also strains our tolerance. We are referring to an unusual spate of filings in one of the FCC’s rulemaking dockets.

The rulemaking itself is an inside-the-Beltway matter. The FCC allows interested parties to file views on its proceedings even after the published comment schedule has expired. These late submissions are called “ex parte” filings, from the Latin for “one-sided,” which they generally are. In the past, they offered a way to put useful technical and policy information before the FCC staff. With the advent of electronic filing, the ex parte process has also become a way for special interest groups speaking through complaisant individuals to flood the FCC with dozens, sometimes hundreds, of nearly identical statements.

The rulemaking in question asks for comment on whether groups filing ex parte statements should have to identify who they really are. After all, an organization called “Citizens for Better Phone Service” may in fact be a telephone company seeking relief from regulation. “Coalition for a Free Internet” may be a front for a cable company opposed to network neutrality rules. And so on. Such groups are often called “AstroTurf®” entities: an artificial construct masquerading as a grass-roots organization. (AstroTurf ® is a registered trademark, even if the registration doesn't cover this particular use of the term.)

In addition to the usual suspects – lobbying groups that make frequent ex parte filings with the FCC – this rulemaking has attracted well over 200 identical submissions signed by individuals. They all read as follows:

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“Technology Experience Center” to give FCC personnel and select visitors hands-on experience with the latest in communications technology.

Last November we told you about the FCC’s request for donations of technical communications devices to its planned Technology Experience Center (TEC), described as an on-site lab that will provide hands-on experience with the latest in communications technology.

The doors of the TEC are now open. Moreover, the FCC has announced there will be themes for each coming month. (If nothing else, that will keep the press releases coming.) This month, July, is about “Innovation & Spectrum.” Future months will feature education (August), public safety (September), healthcare (October), small business (November), and energy (December). The FCC has not said so, but we’re willing to guess rural broadband and disability-related issues are somewhere on the list for next year.

We are all in favor of regulators keeping abreast of new technology. But we have a couple of concerns. For one, the TEC appears not to be open to the public, but rather to be limited to FCC staff and “select visitors from the community.” We’d like to play, too. How do we get an invitation?

Opening-day exhibits are provided by these companies: Comcast, DirecTV, GENBAND, Grooveshark, Globalstar, HTC, iBiquity, LexisNexis, LG Electronics, Livio Radio, Microsoft, Motorola, Open Mobile Video Coalition, Panasonic, Research in Motion, Samsung, Sonos, Sony, and Verizon Wireless.

And that’s another concern.

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It’s not nice to try to fool caller ID services – in fact, it’s now illegal, with violators looking at possible $10K penalties.

“Spoofing” a phone call – that is, hiding your true identity from caller ID services – may sound like a harmless prank, but it’s a serious enough problem to have attracted the attention of Congress. Last year Congress passed (and, in December, President Obama signed) the “Truth in Caller ID Act”, making it unlawful to transmit misleading or inaccurate caller ID information “with the intent to defraud, cause harm, or wrongfully obtain anything of value.” The law charged the FCC with responsibility for enforcing the new prohibition. In late June, the Commission dutifully revised its own rules to reflect the new law;  it also issued a report (ordered up by Congress) on caller ID in new telephone technologies.

The upshot of all this: a new anti-spoofing regulation with a potentially stiff penalty (max $10K for each violation) and a request that Congress broaden the FCC’s authority to reach more spoofers.

Spoofing provides many opportunities well beyond the merely mirthful; in fact, it affords the motivated criminal plenty of ways to wreak serious damage. A malicious caller might, for example, elicit a social security number from an individual by appearing to be from a bank or government office. Or circumvent a bank’s security screening by appearing to be the account holder, calling from the number of record. Or, in a really creepy use, make threatening calls from the recipient’s own number, thus appearing to be actually in the house. Nothing mirthful there.

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Bureau releases tentative – and temporary – guide for compliance with transparency rules

When the FCC adopted network neutrality rules, back in December (full text of the Order is here), almost nobody was happy. Verizon immediately tried to challenge the rules in court, but was deemed premature. More challenges are sure to follow. And even some net neutrality supporters condemned the new rules as vague.

One particularly vague rule concerns transparency. A broadband Internet access provider must

publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.

Back in February, as required by the Paperwork Reduction Act (PRA), the FCC asked for comment on the burden this rule would impose. Broadband providers expressed concerns about difficulties in complying, particularly for smaller providers having limited resources. As we discussed then, the rule cannot take effect until the FCC and the Office of Management and Budget (OMB) complete a complicated procedural dance, which includes a finding that the rule complies with the PRA notwithstanding the providers’ comments.  The Commission’s request for comments in February started that PRA dance; while the next step (i.e., sending the rules and comments over to OMB for its review) could have been taken as early as April, it hasn’t happened yet.

In the meantime, the FCC’s Enforcement Bureau and Office of General Counsel  have tried to address the charges of vagueness with an “Advisory Guidance for Compliance With Open Internet Transparency Rule.” Some highlights:

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Proposed extension of outage reporting requirements beyond traditional wireline and wireless providers underscores increasing significance of VoIP and Internet providers.

When communications systems go down, bad things can happen. Network system outages – be they wireless, wireline, satellite or cable – are more than an inconvenience. Those systems provide a vital link between consumers and the public safety services they depend on, particularly in emergencies.  Largely because of that, the Commission has, for nearly 20 years, sought to stay informed about network system outages. Starting with wireline carriers (in 1992) and expanding to include wireless, satellite and cable folks 12 years later, the Commission has required carriers to report network outages that reach certain levels of seriousness. According to the Commission, these reports permit the Commission to “address communication system vulnerabilities and help prevent future outages.” (The reporting requirements are set out in Part 4 of the FCC’s rules.)

As a further indication of the increasing significance of VoIP on the communications landscape -- and, consequently, VoIP's increased potential exposure to regulation -- the Commission has issued a Notice of Proposed Rulemaking (NPRM) which would extend its Part 4 outage reporting requirements to interconnected VoIP and broadband Internet access service providers (including Internet backbone network providers). The Part 4 rules require providers to report outages or serious degradations that last 30 minutes or longer and meet certain other thresholds (such as number of calling minutes affected).

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With FCC’s blessing, CGB proposes to toss 1,000 – 1,500 (or so) “dormant” proceedings.

In February, 2010, the Commission issued a low-profile Notice of Proposed Rulemaking addressing a number of procedural issues of seemingly minor interest to most of us. In a section titled “Management of Dockets”, the Commission observed that it has more than 3,000 open dockets on its books, many of which “have seen little or no activity in years.”  No surprise there. Conjuring dark images of Docket Death Panels, the Commission ominously opined that “some open dockets may be candidates for termination.” The Commission then proposed to authorize its Consumer and Governmental Affairs Bureau (CGB) to “review all open dockets”, identify “candidate[s] for termination”, consult with the relevant Bureaus and then, WHACK, pull the plug on dockets in which, for example, “no further action is required or contemplated.” 

Fast forward to February, 2011. In a similarly low-key order, the Commission did indeed empower CGB to euthanize what the FCC now characterized euphemistically as “dormant proceedings”. In doing so it gave CGB virtually no guidance to help it identify such proceedings. Candidates for termination with prejudice “might include dockets in which no further action is required or contemplated and dockets in which no pleadings or other documents have been filed for several years” – but would not ordinarily include “proceedings in which petitions addressing the merits are pending”, unless the parties consent.

Armed with that nebulous mandate, CGB has released for comment its initial list of “dormant proceedings” which, absent objection, will be summarily flushed down the tubes in a couple of months. That list is set out in a 97-page table containing more than 1,000 separate line entries. When you dig into them (see below for how you can do this – the process is not as simple as you might think), you find that a fair number of those individual line entries in turn contain as many as 30 or 40 separate and distinct items. From a casual back-of-the-hand calculation, we’d say that CGB is proposing to dump somewhere close to 1,500 separate and distinct proceedings.

So the FCC could be relieving itself of up to half of its open dockets with little more than a single perfunctory notice.

One question: When can we get CGB to come to our office to work its magic with our backlog?

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Last month we reported on a Notice of Proposed Rulemaking looking (among other things) to ease power limits for vehicle-borne radar units – you know, the kind of gear designed to improve traffic safety by sensing nearby objects (like stopped cars ahead or traffic in your blind spot). The NPRM has now been published in the Federal Register, which establishes the deadlines for comments. The deadlines: comments are due by July 18, 2011; reply comments are due by August 1. 

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A succession of waivers is no substitute for a good set of rules.

When the FCC first proposed to authorize ultra-wideband technology, back in 1998, the idea was controversial, to say the least. Ultra-wideband distributes a signal across a very wide range of spectrum, sometimes many gigahertz, but at very low levels. The maximum emissions proposed (and eventually adopted) are the same as the stray radio-frequency emissions allowed from an iPod or a digital alarm clock: at or below 75 billionths of a watt. Yet spectrum occupants of every stripe (see a partial list here) rose up as one to object. Among the opponents were the FAA and other Federal agencies, arguing that ultra-wideband signals could interfere with critical safety equipment, such as aircraft radar and communications, and thereby pose a threat to the public.

The FCC responded with a compromise: eight separate categories of ultra-wideband devices, each with its own rules. Each has a different set of maximum emissions at various frequencies. All of the categories have limitations: indoor only, hand-held only, sale only to police and fire departments, etc. All but two have limitations to a specific use: medical imaging, ground-penetrating radar, and so on. The purpose of the restrictions is to limit the spread of devices that operate at frequencies used to provide critical services.

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When you agree to pay a fine, the FCC really does expect you to pay the fine.

It turns out that, sometimes, the job’s not over even after the paperwork is done. An AM licensee found that out the hard way when it got slapped with a $25,000 notice of apparent liability for failing to take care of a couple of items on a to-do list that it had promised the Enforcement Bureau it would take care of.

The story starts back in 2005, when the licensee (real name: “A Radio Company, Inc.”) received a notice of apparent liability for a short laundry list of problems, including incomplete public file, inadequate tower fencing, and operating with unauthorized facilities (seems the directional AM was using its daytime directional pattern at night). Total damage: $15,000.

The licensee dickered over the details and managed to get the fine backed down a grand (in 2007), but it kept the ball in play by appealing parts of the remaining $14K fine. In 2008, the licensee entered into a Consent Decree with the Enforcement Bureau that shaved another $6,000 off the bottom line. So at that point the licensee was looking at an $8,000 fine, a bit more than half the original amount. According to the Consent Decree, all the licensee had to do was pay the fine, set up a “Compliance Plan” designed to prevent future violations, and file three (count ’em, three) “compliance reports” with the Commission – one 90 days after the Consent Decree, the second a year after, the third two years after – confirming that the Compliance Plan was up and running. Good deal, right?

Apparently not good enough.

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Microsoft decided it, too, wants to be a wireless TV Band Device database administrator.  Well, so do we.

The FCC spent calendar year 2010 studying applications from nine companies that want to be wireless TV Band Device (TVBD) database administrators. The successful applicants will coordinate devices, when they become available, that operate in TV “white space” frequencies. 

Some of the nine applicants, like Google and Comsearch, have enormous expertise in large databases, while some of the others do not.

Last January the FCC, rather than pick winners and losers, simply approved all nine companies that applied.

A few weeks ago Microsoft decided it, too, wants to be a database administrator. Never mind that Microsoft came to this realization 15 months after the application deadline, and three months after the FCC’s decision naming the other nine administrators. Never mind the FCC’s insistence on deadlines in other contexts. (Try sending in your FCC license renewal 15 months after it was due.) Microsoft for some reason gets a pass, not to mention full consideration of its application: the Commission has invited comments on Microsoft’s proposal. “We intend to consider designating Microsoft as a TV bands database administrator,” says the FCC’s public notice.   After all, it continues, Microsoft representatives attended both of the FCC’s database administrator workshops. With a track record like that, why should deadlines matter?

Omitted from the public notice, although possibly a factor in the FCC’s thinking, is that Microsoft, along with a hardware company, demonstrated a TVBD system at the National Association of Broadcasters show in April. The set-up included Microsoft’s prototype white-space database software, which sounds impressive. But the actual operations involved exactly one base station, one client station, and one pretend signal entitled to protection – a far cry from an actual working system in the real world.

Also omitted from the public notice, but probably not a factor in the FCC’s thinking, is Microsoft’s own observation that becoming a database administrator would “enable it to assist its customers in bringing many white spaces applications to market quickly and efficiently.” So what’s good for Microsoft is good for . . . um, Microsoft.

We have no doubt that Microsoft’s qualifications equal or exceed those of at least some of the nine companies selected earlier. Not obvious, though, is that Microsoft’s qualifications are so overwhelming as to justify re-opening the application process after more than a year. Hey, if it’s that easy, we might put in an application ourselves, and make some extra money at home in our spare time. And maybe Microsoft can help us with that long-overdue FCC license renewal.

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And so it begins . . . on Friday the 13th.

A couple of weeks ago we reported about Congressional interest in FCC process reform, and the likelihood that hearings on that subject might be just around the corner. And sure enough – the Communications Subcommittee of the House Energy and Commerce Committee has announced that it will hold a hearing on FCC Process Reform, May 13 at 9:30 a.m. (if you’re in town and want to pop in for a look-see, stop on by Room 2123 in Rayburn Building).  Note that this is a rescheduling – the hearing was originally set for May 3.  The listed witnesses are Chairman Genachowski and the four commissioners. 

As noted in our earlier report, Subcommittee Chairman Greg Walden (R-OR) believes basic reforms can be addressed in a “positive and constructive way.”  With issues such as net neutrality, merger review (AT&T/T-Mobile anyone?) and agency sunshine rules in play, the upcoming hearing will provide an early public test of that theory.

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Large “voluntary contribution” stems from rules on unintentional radio-frequency emissions.

The FCC regulates the use of radio waves. So why did PreSonus, a company that distributes professional audio equipment (for recording and live performances), agree to pay $125,000 to settle claims it had violated FCC rules? The company also consented to a detailed compliance plan intended to prevent future violations. Yet no one thinks the FCC has jurisdiction over sound waves.

The FCC got involved because PreSonus’s products, like many others nowadays, incorporate digital circuits. Like all such circuits, these generate and use radio-frequency signals inside the device. The computer or phone on which you are reading this post works the same way, by shunting electrical activity around its chips and boards at hundreds of millions of pulses per second. Although needed only for internal use, some of that radio-frequency energy inevitably leaks out of the device, where it can pose a threat to radio communications. Ever since 1979, when early desktop computers caused severe interference to home TV reception, the FCC has regulated what it calls the “unintentional emissions” from digital devices.

The FCC has not disclosed the exact charges against PreSonus, but the information it did release suggests the company had not followed the required procedures to demonstrate compliance with the rules limiting unintentional emissions. It also appears that the company’s products did not display certain labels required by the FCC, did not provide required text in the instruction manuals, and did not follow certain importation procedures. The size of the “voluntary contribution” PreSonus must pay under the settlement – about 10-15 times higher than usual for this kind of offense – would be appropriate if many different product models were involved. An earlier digital audio case went even higher, to $1 million, again in part because the alleged violations applied to multiple models.

Manufacturers, are you paying attention? The FCC really does enforce compliance with unintentional emissions limits, along with the associated labeling and paperwork. There are exemptions in the rules for certain categories of digital circuits; but the FCC interprets these narrowly. The vast majority of devices containing digital circuits are subject to the rules. Fortunately, compliance is rarely difficult. As to companies that fail to make the effort, an FCC official once said, “we’ll keep jacking up the fine till we get their attention.” After the PreSonus  case, we think they mean it.

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More signs of the need for a fresh approach to copyright licensing for audiovisual content

In recent months I’ve suggested – here and here, for example – that changes in the video delivery landscape around us demand a good, hard look at the various laws which govern transmission and, especially, retransmission of audiovisual content usually seen on television.   It’s fair to say that, while I don’t advocate any particular approach, I support change that brings the various laws in this area into line with the viewing habits of an increasing amount of television watchers.   

But that would entail a herculean effort involving potential changes to the regulations of two major government agencies: the FCC and the Copyright Office. The FCC would be looking, or re-looking, at such things as the definition of an MVPD as well as rules governing must carry, retransmission consent, fin/syn and program exclusivity. The Copyright Office would have to examine its regs covering cable and satellite compulsory licenses. Changes there and elsewhere would have to be justified in light of actual evidence that the media delivery landscape is changing.  (I’m sold on this, but – if you can believe this – the Administrative Procedure Act requires more than my personal stamp of approval).

So that’s why I’m happy to see signs of serious inquiry on two fronts.

 One such sign is the FCC’s Further Notice of Inquiry in the Matter of Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming (FNOI), released on April 21.   On its face, this is a pretty mundane request by the FCC for information relating to competition in the video marketplace. In fact, it’s the Commission’s 14th annual review since Congress first directed the FCC to conduct such reviews back in the 1992 Cable Act.

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Additional proposals for increased reporting after ex parte meetings out for comment

Folks trying to get their way at the Commission routinely engage in what we professionals refer to as “ex parte” contacts – which usually consist of face-to-face, one-on-one meetings with Commissioners or Commission staff. Such meetings theoretically provide an up close and personal opportunity for the outside party to pitch its side of some issue to the regulators.

Ex parte meetings can be useful, but they also can be problematic from the perspective of due process and fairness. The term “ex parte”, after all, derives from the Latin for “one-sided”. If the issue which the private party is pitching in the meetings is contested, what are the chances that the other side of that issue will be fairly and accurately presented? (Non-FCC illustration: how would you feel if you found out that your soon-to-be-ex-spouse had had a private tête-à-tête with the judge presiding over your hotly-contested divorce case?)

In order to assure itself maximum access to potentially useful information (through, e.g., ex parte contacts) while still preserving at least the illusion of fairness and openness in the decision-making, the Commission has crafted a number of rules to govern the ex parte process. Those rules prohibit ex parte contacts in certain types of proceedings; in other types, such contacts are permitted as long as the private party follows up the meeting by submitting a notice summarizing the gist of the meeting (including any written materials that might have been handed out during the meeting). That notice is then placed in the FCC’s public files so that, theoretically, anyone with an interest in the proceeding at issue will be alerted to the meeting.

As happens periodically, the Commission has now adopted new rules clarifying, and expanding, the post-ex parte disclosure requirements.  Although the Commission announced the new rules back in February, they aren’t scheduled to take effect until June 1. (A couple of the changes involve “information collections” and, as a result, won’t be effective until approved by the Office of Management and Budget.) Additionally, the Commission has proposed further changes to those requirements.

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Key Congressional figures signal interest in examining the way the FCC does business

Have any thoughts on how the FCC could operate better? Increasingly, a number of influential members of Congress seem to believe they do. Momentum continues to build on Capitol Hill for reform of the Federal Communications Commission with recent statements – and hints of action – from key members of the House Energy and Commerce Committee.

Speaking at the American Cable Association’s annual summit on April 13, House Communications Subcommittee Chairman Greg Walden suggested there would be a hearing and movement on legislation on FCC reform in the near future. Expectations are that the five FCC commissioners will be called to testify before the subcommittee within a few weeks of Congress’ return from recess.

Walden made a strong pitch for Congress to actively oversee the agency, stating: “Failure to do that only gives them license to do other things they don't have the authority to do.” Walden, of course, introduced a House-passed resolution to invalidate, as an overreach of FCC authority, the Commission’s recent net neutrality rules.

Walden expressed his belief that both the Democrat and Republican FCC commissioners agree on the basic need to improve how the agency functions (see, e.g., “Copps, Commissioner, sunshine rules” and “Baker, Commissioner, merger review”) and that such reform can be done in a “positive and constructive way”.

And Walden is not alone in his interest in Commission process reform.

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Unlicensed boosters could improve reception but could also increase interference

When you’re trying to make a cell phone call, have you ever been thwarted by those pesky laws of physics? You know, those ones that cause signals to fade at long distances from base stations or impede signals in tunnels, buildings or dense foliage. If so, the FCC thinks it may have an answer to your problems – wireless consumer signal boosters. While signal boosters have been an option for certain FCC wireless licensees for a while, the FCC recently issued a Notice of Proposed Rulemaking (NPRM) kicking off a proceeding designed to allow individual consumers to purchase and use such boosters. 

The NPRM was released both in response to a number of petitions filed by private parties and as part of the Commission’s overarching effort to deploy wireless and broadband services. In it, the Commission recognizes not only the potential value in signal boosters, but also the significant potential for interference created by poorly designed or installed boosters. To attempt to ensure that boosters are deployed effectively and safely, the Commission proposes to impose requirements on the manufacture and marketing of boosters themselves, rather than adopting a licensing regime for their use. The NPRM seeks comment generally on this approach, as well as on a number of more discrete issues.

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Amateur radio operators fail on petitions for reconsideration.

Last year we reported on the FCC’s grant of a waiver for a surveillance robot called the Recon Scout, over the objections of the amateur radio community. Well, that’s that, said the amateurs, and went on to something else.

We’re kidding. That’s not what they said. ARRL, the National Association for Amateur Radio, along with three individual amateurs, asked the FCC to withdraw the waiver.

The FCC has now turned down those requests. It dismissed one individual’s petition because he filed it five months after the deadline. It denied the other two individuals’ petitions, and most of ARRL’s, because they largely raised issues the FCC had already addressed in the original grant.

The only changes resulting from the decision are expanded labeling on the device and a longer note in the instruction manual – changes that the Recon Scout manufacturer had publicly endorsed.

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Tach it up! Tach it up! FCC moves to DefCon1 in anticipation of government shutdown

We’ve posted a couple of alerts about the possible shutdown of the federal government and the effect that that could have on licensees (read them here and here). Now the FCC itself is getting into the act. It has just posted on its website a “Plan for Orderly Shutdown Due to Lapse of Congressional Appropriations”. The Commission’s plan allots a total of four hours to complete “orderly” shutdown procedures. (The clock on that four-hour period apparently will start with the issuance of a “notice of decision to furlough” that will be emailed to all Commission employees to be sent home. Comforting factoid: All five Commissioners will stay on board through the shutdown.)

 

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“Incentive Auction Incentive Program” could eliminate need for Congressional authorization

Proving yet again that where there’s a will, there’s a way, the FCC has announced that it is proceeding with incentive auctions “promptly”. This is noteworthy, of course, because Congress still hasn’t gotten around to authorizing the sharing of auction proceeds – and the conventional wisdom has been that, without such authority, incentive auctions were a non-starter.

So much for the conventional wisdom.

As outlined in a public notice, the Commission has devised a novel work-around: an Incentive Auction Incentive Program. Instead of promising broadcasters actual cash payments from auction proceeds in return for relinquishing their spectrum, the FCC will offer its own currency, “in the form of scrip”, which can then be redeemed for various “non-cash resources” already available to the Commission.

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 Last December we reported on a Notice of Proposed Rulemaking (NPRM) in which the Commission proposed to overhaul the experimental licensing rules. The deadline for comments on the various proposals has come and gone (it was March 10), but you still have time to file reply comments, which are due by April 11. Be careful, though. The Office of Engineering and Technology has just released an Erratum to its NPRM advising that one of the two docket numbers listed in the caption of the NPRM was wrong. According to the text of the Erratum, the second of the two numbers should read “ET Docket No. 06-155”. 

This information may be important to anyone planning to file reply comments: having the correct docket number in the caption should help to get the filing into the proper bureaucratic pigeonhole in the FCC’s filing system.

Of course, this doesn’t help folks who filed comments using, presumably, the incorrect docket number – although there’s a reasonable chance that, if they used the correct lead docket number (that would be ET Docket No. 10-236), there shouldn’t be any problem.

Now that the Commission has spread the word to the public about the mistaken docket number, it might also want to do the same internally. The caption of the Erratum still includes the incorrect number.

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Initial deadline: April 5, 2011

If you’re a TV licensee providing over-the-air feeds to one or more distant translator/LPTV/Class A stations, cable head-ends or satellite local receive sites, heads up. You need to act soon if you want reception of your signal at those sites to be protected from unlicensed devices operating in the TV band. April 5, 2011 is the deadline for TV stations with receive sites more than 80 kilometers beyond their protected contour to seek a waiver of the Commission’s geographic limitation to be able to register such receive locations. Note: this is a one-time-only opportunity.

Back in 2008, when the Commission adopted rules to govern the operation of unlicensed devices in the so-called “TV white spaces”, it sought to protect existing TV operations by establishing a database in which certain locations requiring protection could be registered. While receive locations that happen to be within a TV station’s protected service area were already routinely protected, that wasn’t the case for receive sites serving distant TV translator/LPTV/Class A TV stations, satellite or cable (MVPD) services, all of which deliver the signal to viewers outside the originating station’s protected contour. The Commission decided to protect, within reasonable bounds, the ability of such stations and services to receive programming over-the-air for retransmission.  “Within reasonable bounds” in this context meant within 80 kilometers of the originating TV station’s protected contour. Translator/LPTV/Class A stations and MVPD services with receive sites so located were thus allowed to register their sites in the TV bands device database.

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Unilateral and unsuccessful measures held to satisfy requirement for “cooperation” in 3650-3700 MHz band.

The FCC has reviewed its interpretation of a rule that some parties found to be unhelpfully vague. In refusing to make changes, the FCC has left those affected uncertain of their obligations.

As is generally expected of rules, most at the FCC take the form of “Thou shalt” or “Thou shalt not.” Sometimes there is room for dispute on how a rule applies to a novel situation. But in ordinary cases, the requirements are usually pretty clear.

These principles fail to hold, some think, in the policies governing the 3650-3700 MHz band. The procedures are unique in the FCC rulebook. There is no formal frequency coordination, as in most licensed bands, to protect first-in users against interference from later arrivals. But neither is there an everybody-into-the-pool approach like that governing Wi-Fi. The FCC does keep a database of users, much like the ones frequency coordinators rely on, but its implementation is strictly on a do-it-yourself basis, and arguably optional.

Back in December 2009, we reported on a decision by the FCC’s Wireless Telecommunications Bureau concerning this band.

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Use of unlicensed transmitter on non-certified frequency brings fine for operation without a license

The FCC has proposed a $25,000 fine against AT&T for the offense of . . . well, let’s talk about that.  In its zeal to protect the spectrum, the FCC may have charged AT&T with the wrong offense.

A little background may help.

The FCC allows unlicensed operation in a band up above 5 GHz. The applications tend to be a lot like Wi-Fi, but under a different set of rules, called U-NII, for “unlicensed national information infrastructure.” (No, that won’t be on the exam.)

A few years ago the FCC expanded the U-NII band into a region of the spectrum also used by airport weather radars. The radars are used to detect wind shear in the vicinity, important to flight safety. In careful collaboration with the FAA, the FCC added rules that require U-NII devices to listen for the radars and avoid their frequencies – a capability called dynamic frequency selection, or DFS. The band is now popular for wireless Internet access service, among other applications.

But the technical rules did not work as planned.

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A week or so ago the FCC released a Report and Order and Further Notice of Proposed Rulemaking (R&O) addressing changes in its ex parte rules – an area so arcane that even we here at CommLawBlog have refrained from blogging about it so far. The R&O is a healthy 37-page item, complete with a detailed table of contents that looked like this when it was originally issued:

But now the Commission’s General Counsel has issued a one-page Erratum, the sole stated purpose of which is to “correct[ ] the paragraph numbers listed in the Table of Contents of the R&O.” The corrected version is reproduced below:

We’re glad they took the time to get that all straightened out  . . .

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Nine companies will compete while sharing responsibilities and data.

You know those T-ball games for very young children where everyone is declared a winner and everyone takes home a trophy?

Keep that in mind for a few minutes.

The FCC, as our readers know by now, has authorized wireless TV Band Devices (TVBDs) that will operate in the “white spaces” on the TV frequency map – i.e., on TV channels that have no local TV station. Proponents, who like to call these devices “Wi-Fi on steroids,” claim they will boost the availability of wireless services with extended range, fewer dead spots, and improved speeds, promote rural broadband, aid education and medicine, and further spectrum efficiency. And create jobs. And also clear up that annoying rash.

As a condition of operation, the millions of expected TVBDs will have to avoid causing interference to active TV stations, the many wireless microphones that share the TV band, and certain TV reception sites. To do this, most will consult a complex and changing database that indicates where TVBDs can safely operate. The existence of a database in turn presupposes one or more “database administrators.” Last November, the FCC invited interested parties to submit applications for that role.

Nine companies responded. Some, like Google and Comsearch, have enormous expertise in constructing and maintaining large databases. The qualifications of some others are less obvious.

The FCC made its choice by not making a choice: It approved all nine applicants as database administrators, with the expectation they will compete among themselves for business.

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A couple of months ago we reported on a Notice of Proposed Rulemaking (NPRM) which could lead to dramatic changes in the experimental licensing processes. The NPRM has now been published in the Federal Register, which in turn establishes the deadlines for comments and reply comments relative to the NPRM.  Comments are due by March 10, 2011, and reply comments by April 11, 2011.

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Inadvertent errors in applications draw $20K fine for Cricket

FCC enforcement procedures continue to baffle us.

Take the case of Cricket Communications. They are a cell phone company, as you probably know – their ads are hard to miss. To move their phone traffic from place to place, they operate dozens of microwave stations. The FCC rules require licenses for these. If you want one, you have to apply for it, but you need not wait for the license to be granted. Rather, you can begin operating as soon as the application is filed, assuming certain conditions are met. Once the FCC does grant the license, the licensee has 18 months to get its station built and on the air (if it isn’t already), and has 15 days beyond that to certify to the FCC that it has done so. Without that certification, the license cancels automatically.

Cricket had trouble with two of its microwave licenses.

As to one, it filed the construction certification on time, stating it had built the station within the 18 months allowed. But it later found the certification was in error, and had to amend. The new certification showed it had built and begun using the station much earlier, before it had even filed the license application. That amounts to unauthorized operation, which is a violation of FCC rules.

As to the other license, Cricket got the contents of the construction certificate right the first time. But it filed the certificate late, after the 18-months-plus-15-days had elapsed. And this certificate likewise showed that operation had commenced before the application was on file.

The Enforcement Bureau has proposed a fine of $20,000, which is exactly the expected penalty for two instances of unauthorized operation.

That should be the end of the story.

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(Blogmeister’s Note: FHH Telecom Law welcomes back guest commentator Catherine McCullough. This month she provides her perspective on the impact recent committee appointments are likely to have on communications issues in the 112th Congress. Catherine is a principal in Meadowbrook Strategic Government Relations, LLC and a specialist in Congressional relations.)

January is over, and the House and Senate Committees that oversee telecom issues have officially organized – issuing full lists of members, deciding on the rules by which the committees will work, and dividing up the budgets between Democrats and Republicans (thus setting the tone for how well the parties will work together in the 112th Congress).

So what will the legislative priorities of these committees be? The two themes of love and money – constituent votes and budget issues – that we identified in an earlier post still dominate. However, now that we know who all of the players are, including the subcommittee chairs, we can take these policymakers’ legislative pasts into account, and perhaps identify which specific bills we should see introduced in the coming months.

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C-SPAN calls on CommLawBlog contributor

If you had the bad judgment to stick with the Saints-Seahawks game on Saturday of Wildcard Weekend, you may have missed our friend and occasional contributor, Catherine McCullough, who appeared on C-SPAN’s “The Communicators” program. Catherine was one of two former Hill staffers (and current lobbyists) discussing likely developments in telecom and technology policy in the 112th Congress. (If you did miss it, no worries – the whole 30-minute show is available at C-SPAN’s site.) Props to C-SPAN for its excellent judgment in bringing Catherine on.

Props, too, to Catherine for her useful insights. No surprise there, though – regular readers of CommLawBlog are accustomed to such insight from Ms. M. Check out her previous posts here, here and here.

And speaking of our readers, we couldn’t help but notice how the C-SPAN moderator set up his opening question of the program: “You wrote in a recent blog on CommLawBlog.com . . .” Hey, that’s us! Schweeet! Needless to say, we’re grateful for the shout-out, and we’re happy to be a go-to place for folks like C-SPAN who want to stay on top of developments in the law of communications.

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As we reported last August, the FCC had adopted new rules governing hearing aid compliant handsets. Those rules – most of which became effective back on October 8 – closed some loopholes that had allowed manufacturers like Apple to sell iPhones without having to comply with certain regulatory chores applicable to the sale of broader lines of handsets. But one element of the new rules did not take effect back in October: specifically Section 20.19(f), which requires manufacturers to disclose to consumers if handsets operate over air interfaces or frequencies for which no technical standards have been established. Since the disclosure requirements of that section (and related revisions to FCC Form 655, the Hearing Aid Compatibility Status Reporting Form) needed prior approval from our friends at the Office of Management and Budget (OMB), those particular aspects of the new rules have been in a holding pattern for several months. But OMB finally gave the FCC’s changes the old thumbs up (on December 7), a fact which the FCC has now duly published in the Federal Register . As a result, Section 20.19(f) has become effective on December 14, 2010.  

Handset sellers take note.

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Frequency-by-frequency licensing of the last hundred years will go the way of the vacuum tube.

In an obscure and largely overlooked Notice of Inquiry, the FCC has begun to overhaul the very foundations of radio communications.

The first practical radio transmitters, early in the 20th century, used a simple “spark gap” technology that spread signals over a wide swath of frequencies. This was not a problem when few transmitters existed, but as their numbers increased, the then-useful part of the spectrum soon became crowded.

Within a few years, engineers were using recently-invented vacuum tubes in conjunction with a circuit that limits a radio signal to a specific frequency. That solved the immediate congestion problem, as each transmitter could be assigned a frequency different from others in the vicinity.

Now, a century later, we still use that same system. Every licensed transmitter, whether flea-powered walkie-talkie or megawatt TV station, is assigned a specific frequency. Over the decades, as more transmitters came into use, the licenses gradually filled up each part of the spectrum. The engineers, though, kept finding ways to use ever-higher frequencies, and thus steadily pushed the supply of spectrum ahead of the demand. Back in 1984, when I started doing FCC work, there were plenty of unallocated frequencies below 1 GHz, open spaces up to 40 GHz, and almost nothing above. Today everything up to 40 GHz and beyond is filled in solid, with active use extending up to 95 GHz.

Worse, the tactic of opening ever-higher frequencies has now run out. Those pesky laws of physics limit the frequencies above 95 GHz to short distances, straight lines, and dry climates. The spectrum is effectively full and there is nowhere else to go, say the supposed experts.

But wait.

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New kinds of licensing promise innovators easy access to nearly all of the radio spectrum.

The FCC has always been friendly to experimenters, whether they are basement hobbyists or industrial researchers. Since 1934 the Communications Act has enjoined the FCC to “[s]tudy new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio . . . .” Just as important, many of the engineers at the FCC who began as teenage hams and tinkerers are eager to encourage the next generation. The FCC imposes only minimal regulation on amateur radio equipment, allows DIYers to design and operate home-brew transmitters with hardly any regulation at all, and offers “experimental licensing” so researchers and commercial innovators can test out new devices.

Nonetheless, while the pace of innovation accelerates, the rules on experimental licensing have stagnated. They require, among other things, separate FCC approval for each individual project. Ironically, considering their purpose, the rules are highly hospitable to minor variations on established uses of radio, while experimental licenses for more creative technologies can be hard to obtain. The FCC staff who do this work are technically capable and usually sympathetic to the applicants, but they are bound by the rules on the books.

In a burst of candor that may surprise equipment manufacturers and scientists, the FCC now concedes that the process for issuing these licenses can be a “roadblock to innovation.”  With this new self-awareness comes a comprehensive Notice of Proposed Rulemaking (NPRM) on experimental licensing rules so the FCC can (in its own words) “inspire researchers to dream, discover, and deliver” innovations to promote “a better way of life for all Americans.” The path to this Norman Rockwell ideal entails both updating the current rules and creating new licensing arrangements for research and development.

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* but NOT “information collection” rules or, as a practical matter, any white spaces rules dependent on existence of any FCC-blessed white spaces database

As we reported last September the Commission disposed of 17 petitions for reconsideration of its white spaces rules, and thereby set the stage for getting those rules up and running. Or so many folks may have thought. But no job is ever done until the paperwork is wrapped up, and the mere release of the Second Memorandum Opinion and Order didn’t do the trick – such items must first be published in the Federal Register.

That publication has now happened . . . so most – but not all – the white spaces rules are now officially set to take effect on January 5, 2011.

Why not all? Because a number of the rules – specifically, §§15.713, 15.714, 15.715 and 15.717 – involve “information collections” which can’t be implemented before the OMB approves them. So those particular rules are not subject to the January 5 effective date.

But even though we now have an official effective date, we probably won’t be seeing white spaces gear screaming off the shelves and improving all of our lives right away. That’s because the white spaces rules depend in large measure on the existence of a national white spaces database compiled and maintained by a manager . . . and the Commission has yet to sign off on a database system or select a manager. While there have been some indications that progress is being made on those fronts and that we might see some developments real soon, the roll-out of virtually all white spaces devices will, as a practical matter, be on hold until the FCC wraps up the necessary paperwork on that part of the process.

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Love and money are likely to be the keys to the game. 

[Blogmeister’s Note: CommLawBlog welcomes back Catherine McCullough, who provides us with the following insight into the upcoming Congressional session. Catherine, who has guest-blogged for us previously, is a principal in Meadowbrook Strategic Government Relations, LLC and is a specialist in Congressional relations.]

Welcome to the 112th Congress. Notice anything missing? Like a third of the House Energy and Commerce Dems? Or a Congressional mandate on net neutrality? Or Chairman Boucher? Me too. So let’s take a few minutes to figure out what it all means.

Let’s start with the larger picture. This year’s midterms have put Members on notice that voters are not afraid to fire them. And each party is looking to 2012 to capture complete control of both houses of Congress and the White House.

So in the upcoming Congress look for Members to be feverishly competing for two things: love and money. Love in the form of votes (from an unusually angry electorate, eager to hold officials accountable). And money in the form of, well, money, i.e., the ability to spend government funds on their preferred projects (without, of course, looking fiscally irresponsible).

As we shall see, both love and money can be found in telecom policy. So it’s likely that telecom issues will get considerable attention from Congressional leadership, including precious “floor time” for debate. Here is how I see the 112th playing out.

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FCC’s November 30 agenda also includes proposals affecting experimental licenses, short-term spectrum use.

The FCC is preparing itself for an exciting 2011.

Here in the CommLawBlog bunker, we usually wait for things to happen before reporting on them. But the FCC’s recent release of the planned agenda for its November 30 meeting serves up items likely to cause such a huge stir that we all might need a little advance warning.

First is a Notice of Proposed Rulemaking on “TV Spectrum Innovation.” Remember the DTV transition when, among other changes, almost all TV stations switched their channels? The FCC wants to do it again. The shift to DTV freed up 108 MHz of prime spectrum, half of which the FCC auctioned off for $20 billion. It’s hard to argue with that many zeroes, so it’s back to the well for another dip. 

The idea is to take away still more TV spectrum and auction that off, too. In theory, a displaced broadcaster could walk away with some of the auction money and open an aromatherapy boutique, or whatever his/her life’s dream is. Or he/she might double up with another broadcaster on a surviving channel. Although the FCC can authorize the channel sharing itself, sharing the auction money would require action by Congress. (As we have previously reported – here (about S. 3610) or here (about H.R. 5947), or here (about S. 3756) – that legislation is already in the works.) While the FCC has made no secret of its aim to scavenge TV spectrum for broadband use, the precise mechanics have not yet been spelled out. On November 30 we should get a clearer picture of what the FCC has in mind.

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The holidays are still a few weeks off, and the FCC just can’t wait.

The FCC is opening a new “Technology Experience Center.” Its purpose? To give “FCC employees and invited guests hands-on experience with the latest communications devices and solutions.”

Let us explain what this is really about.

Part of our job here at FH&H is persuading the FCC to adjust its technical rules, when needed, to accommodate new technologies. This can be a slow and difficult process.   We find it helps, when visiting the FCC, to put on the table a specimen of the gadgetry at issue, preferably smooth and shiny with blinking lights. The FCC engineers inevitably play with the item, push the buttons, and pry off the cover to see the insides. (Interestingly, most lawyers refuse all hands-on contact.) Once the staff gets a close-up, first-hand look at the technology, the rule changes seem to come more easily.

Apparently, though, people like us are not bringing in new gadgets often enough. So the FCC is asking for more.  Sure, they dress up the request by calling it a “Technology Experience Center”, whatever that is. But we think the real purpose is plain: more toys. Manufacturers and vendors who want to donate devices now have a phone number to call. Of course, the FCC tells contributors not to expect any benefit, and warns that acceptance of a gadget does not constitute endorsement. But even so, we think UPS is going to see a lot more boxes than usual headed for the Portals. We picture a big playroom with lots of shelves filled with blinking lights.

For us, the goal will be, somehow, to get on the list of “invited guests.”

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It’s okay; we all make mistakes.

The FCC’s recent order on white space devices, which we reported on here, and followed up on here, had a few glitches. The FCC has now released a longer-than-usual erratum clearing them up.

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 Back in August we reported on a wide-ranging “Policy Statement and Second Report and Order and Further Notice of Proposed Rulemaking” (Order) aimed at expanding the reach of the Commission’s rules governing hearing aid compatibility. And just yesterday we reported on the recently-signed-into-law Twenty-First Century Communications and Video Accessibility Act of 2010. Recognizing that that far-reaching law could have an impact on the proposals the Commission has put on the table in its Order, the Wireless Bureau has now published a notice in the Federal Register expressly asking commenters to address the effect of the 21CenComVidAccAct on the FCC’s proposals. Anyone planning to try to help the Bureau out in assessing the Act’s impact better get cracking, though: the Bureau is not altering the previously-established comment/reply comment deadlines. That means that you have until October 25, 2010 to file comments and November 22, 2010 to file reply comments. Since the 21CenComVidAccAct consists of 26 pages of fine-print legalese, time may already be running short.

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Recent case suggests it is okay to keep lying to the FCC, until they write back and ask you not to.

Pop quiz: Raise your hand if you think you can get away with a deliberate flat-out lie to the U.S. Government – even after they catch you at it. Joshing with the post office clerk doesn’t count. We mean responding to an official letter of inquiry with an intentional falsehood about a material fact.

We don’t see your hand raised. Surprise – chances are, the worst the FCC will do is send you a letter asking you to please not do it again.

We reported back in April about the unwisely-named “Phonejammer” company, fined $25,000 by the FCC for selling, as you might expect, cell phone jammers, which are illegal in the United States. (In a humorous digression, the April piece stated that Texas and Florida allow open carry of firearms. Thanks to the many, many readers who sent us emails, we understand now that was incorrect. Please stop writing us about this.)

As we noted, Phonejammer denied to the FCC that it had marketed in the United States. The denial came in two letters, responding to questions from the FCC. The company bluntly said it “does not market to the United States, and has not shipped or distributed units to the United States.” The FCC read this while holding a jammer in each hand, both purchased in the U.S., with a Phonejammer invoice for one and a Phonejammer credit card receipt for the other. The FCC also had open the Phonejammer web site, which gave every sign of selling and shipping to U.S. residents.

Both FCC inquiries to Phonejammer included a requirement that answers be supported by affidavit, so that untruths could be prosecuted for perjury. The company’s responses left out the affidavit both times.

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Last chance for opponents to seek overturn of rules

The FCC order ending the ultra-wideband rulemaking appeared in the Federal Register on October 12, and takes effect November 12. After 12 long years of lawyerly and technical bickering, the proceeding is finally over.

Or maybe not. The same parties who have already filed four petitions for reconsideration – that is why we’ve been at it for 12 years – have the right to file yet again. But if they do, they are unlikely to prevail. For one thing, the FCC’s last order showed off the agency’s defensive drafting skills to good effect, with its lawyers carefully closing off each legal argument through which opponents might seek reconsideration. For another, the FCC’s procedural rules disfavor recidivist reconsideration petitioners. In cases where an earlier petition for reconsideration failed, as happened here, “a second petition for reconsideration may be dismissed by the staff as repetitious.” This rarely stops a determined serial petitioner – read about an extreme case here – but it may be enough to deter the cell-phone and satellite interests that have kept the proceeding going for so long.

Disgruntled ultra-wideband opponents have another option: an appeal to the federal courts. That would take about two years and, if the court decides the FCC should take another look, an additional year or two past that.

But the opponents are probably safe in spending their lawyers’ fees on something else instead. Their concern all along has been the supposed threat of interference from hundreds of millions of ultra-wideband consumer devices polluting the spectrum. Those have failed to materialize, for the reasons we explained here.   Unless ultra-wideband device sales pick up dramatically, opponents won’t have much to worry about.

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Protection of TV STAs overlooked; Potential protection of LPTV, TV translator, cable, etc. OTA-receive sites expanded

Poring over the fine print of the FCC’s “white spaces” decision we wrote about last week, we have found two issues that merit the attention of TV broadcasters.

White spaces devices, of course, will operate on vacant TV channels and will have to protect TV broadcast stations. Each device will consult a database to determine which TV channels can be safely used at the device’s location. Devices may have to change channels as necessary from time to time to afford the required protection.

Since the selection of vacant channels will be a dynamic process, the FCC wants to make sure that only channels actually in use by TV stations are marked as off-limits. So, for example, channels occupied by unbuilt TV construction permits would be available for white spaces devices, since, being unbuilt (and, thus, inoperative), the TV CPs would not be subject to any actual interference. With that in mind, the new rules provide that the white spaces database need recognize only granted or pending license applications for both full and low power TV stations.

Whoops.  What about Special Temporary Authorizations (STAs)?

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Upcoming Commission meeting may finally give green light to new technology

The FCC has announced that it plans to take up the long-pending white space proceeding at its upcoming September 23 meeting. Since that proceeding has been largely out of the spotlight for the better part of 18 months, it seemed a good idea to remind our readers, and ourselves, of the issues on the table in the white space proceeding and how the Commission has addressed those issues to date.

The white space proceeding started in 2002 with a reasonably straight-forward premise. Every city has dozens of TV channels, with exceptional propagation characteristics, sitting empty. Why not use them for something?  Low-power, unlicensed wireless devices operating on these unused channels – channels dubbed “white spaces” because they show up in white on a frequency map – could be deployed for a variety of uses, thereby increasing the efficient use of the spectrum. What’s not to like?

In theory, the concept looks great. But in practice, potential problems abound.

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Puzzled by the headline? So was I last month, when the Commission issued a public notice bearing the header “FCC TO RELEASE ASIAN LANGUAGE TRANSLATIONS OF NATIONAL BROADBAND PLAN SUMMARY AT LOS ANGELES FORUM FOR ASIAN AMERICAN AND PACIFIC ISLANDER COMMUNITIES”. The particular “communities” for which translations have now been issued are “Chinese (Simplified), Samoan, Tagalog, Korean, Thai, and Vietnamese”.

What puzzled me was not that the translations were being made available – that, after all, was consistent with the Commission’s full-court, no-holds-barred effort to “raise awareness of broadband”. 

No, what puzzled me was that the FCC’s public notice was issued only in English. 

Maybe I’m missing something, but if folks can’t understand English enough to read the National Broadband Plan in its original form, how are they going to understand an English language public notice alerting them to the availability of non-English versions? Wouldn’t it make more sense to issue the public notice in, say, Chinese (Simplified), or Samoan, or . . . well, you get the picture.

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Listen up! Last month we reported on a Notice of Proposed Rulemaking looking to extend the reach of the Commission’s Hearing Aid Compliance rules. The NPRM has now been published in the Federal Register, which in turn sets the dates for responsive comments and replies. Comments on the NPRM are due by October 25, 2010; reply comments are due by November 22, 2010.

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A promising technology is slowed by regulators, then stifled in the standards-setting process.

After 12 years, the FCC has closed out one of the longest and most contentious rulemakings in recent memory.

Ultra-wideband was bound to be controversial from the start.  The basic idea consists of spreading a low-level signal across a very wide swath of spectrum, often a gigahertz or more. In principle, the level at any one frequency is too low to interfere with conventional spectrum users, but the power adds up across the wide bandwidth into a useful signal.

The FCC expected two main kinds of uses: data transmission, which can reach hundreds of megabits per second over short distances, and a variety of imaging and radar applications.

The Slow Grind of Regulation

When the FCC first proposed rules to allow ultra-wideband, virtually all major categories of spectrum users rose up as one to oppose it. The opposition included:

• aerospace companies
• amateur radio associations and operators
• airlines and their associations
• broadcasters
• major cell phone manufacturers
• cell phone service providers (especially vehement in their opposition)
• U.S. Government agencies (including the Department of Defense, Federal Aviation Administration, and NASA)
• the GPS industry association and several manufacturers
• aviation radio interests
• maritime radio interests
• medical telemetry companies
• many police and fire departments
• satellite radio providers
• many satellite companies and their association (likewise vehement)
• telephone equipment manufacturers, and
• many more.

Facing down this expensively lawyered force was a small handful of start-up companies, backed by a few established radar manufacturers. But the start-ups had something on their side even more powerful than lawyers: the laws of physics. Straightforward analyses showed that ultra-wideband, with appropriate safeguards, was non-interfering.  Opponents that tried to show otherwise had to make unrealistic assumptions in their math. At least, that is how the FCC saw it.

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FCC expands access to wider range of hearing aid-friendly devices 

In a wide-ranging “Policy Statement and Second Report and Order and Further Notice of Proposed Rulemaking” (Order), the FCC has taken the expected step of expanding the universe of devices covered by its Hearing Aid Compliance rules, and at the same time has sought comments on measures that would extend the reach of its rules even further. Its goal is to ensure that hearing-impaired folks will have access to “innovative and advanced” handsets that will assist them in “participat[ing] fully in the American economy and society.”

Since 2003, the FCC has been slowly ratcheting up the quantity and quality of wireless handsets which must be made available to persons with hearing problems. The Commission has for years required equipment manufacturers to produce, and CMRS carriers to provide, certain numbers or percentages of hearing aid compliant (HAC) handsets as part of their offerings to the public. In 2008 the Commission mandated phased-in increases (through 2011) in the percentages of available HAC handsets; it also specified how many “acoustic coupling” or “inductive coupling” units had to be available to customers. (Acoustic coupling amplifies sound from the handset device while inductive coupling effectively creates a new audio receiver in the hearing aid from the telephone unit, reducing feedback and undesired ambient noise amplification.)

The FCC also requires annual reports in which carriers must detail the dates and quantities of each type of HAC unit they offer.   Enforcement of the rules has been unusually vigilant and stern, with many carriers receiving five-figure fines for falling a phone or two short, or even for simply failing to file the required report.  (The Commission has gone so far as to threaten such non-telecom companies as 7-Eleven and Circle K with hefty fines for failing to file HAC reports – since both 7-Eleven and Circle K stock prepaid handsets for their customers.)  

Clearly, the FCC means business when it comes to HAC phones.

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Back in June we reported on a wide-ranging Notice of Proposed Rulemaking (NPRM) looking to revamp and consolidate an alphabet soup of radio services which the FCC refers to generally as the “Personal Radio Services”. The NPRM has now been published in the Federal Register, which establishes the comment deadlines. Comments on the proposals are due by September 3, 2010; reply comments are due by September 20.

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