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

Changes to technical rules affect licensing, frequency coordination

Those interested in the finer points of Private Land Mobile Radio (PLMR) and Wireless Medical Telemetry Service (WMTS) – you know who you are – should check out a recent FCC order addressing a grab-bag of Part 90 and Part 95 issues. [WARNING: Don’t try reading the order if you’re driving, operating heavy equipment, or performing any task requiring alertness.]  Following up on a three-year-old proposal, the FCC has now:

• exempted from required frequency coordination certain categories of Part 90 applications that do not threaten new interference, such those requesting CMRS-to-PLMR conversion, bandwidth reduction, lowered antenna height, or decreased power (Section 90.175);
• removed channel restrictions and power limits for mobile repeaters below 450 MHz and power limits for handheld transmitters (Section 90.247);
• clarified that state and local governments (as well as businesses) are eligible to use Industrial/Business Pool licenses for commercial activities and surveying (Section 90.35);
• because the FCC no longer issues authorizations for systems with a station class of FB8T (temporary centralized trunked relay), clarified that stations currently classed as FB8T will be renewed as either FB2T (for private, internal systems) or FB6T (for for-profit private carriers) stations; and
• prohibited registration of WMTS devices on portions of the 1427-1432 MHz band where they do not hold primary status, in order to protect WMTS devices from harmful interference not anticipated by healthcare facility personnel (Section 95.1111).

[OK, rinse down a couple of NoDoz with that Red Bull-laced triple shot espresso, splash some cold water on your face, take a deep breath, open a couple of windows, and read on.]

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New BIP deadline: March 29; New BTOP deadline for CCI projects: March 26

NTIA and RUS have announced extensions of the deadlines for some, but not all, submissions in response to the Second Notice of Funds Availability (NOFA) issued as part of the Big Money Hand-out made possible by the American Recovery and Reinvestment Act of 2009.  Applications for Broadband Initiatives Program (BIP) funding will now be due at RUS by 5:00 p.m. (ET) on March 29, 2010. Applications for Comprehensive Community Infrastructure (CCI) projects under the Broadband Technology Opportunities Program (BTOP) will now be due at NTIA by 5:00 p.m. (EDT) on March 26, 2010. 

It’s not clear why one agency opted for March 26 while the other opted for March 29, but would-be applicants should be sure to note that the deadlines for NTIA and RUS applications responsive to the Second NOFA are no longer identical.

Also, the extensions do NOT apply to requests for NTIA/BTOP funds for Public Computer Center projects or Sustainable Broadband Adoption projects. The deadline for applications for such projects remains 5:00 p.m. (EDT) on March 15.  Check out our blog post about the Second NOFA for further details about the different types of projects.

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Proposals are intended to make FCC proceedings more efficient and transparent, and less prone to abuse.

Those of us charged with getting the FCC to do things – issue licenses, grant waivers, cancel fines, all of that – are vitally interested in the fine points of FCC procedures, because understanding them can spell the difference between success and failure.  Just as no one would sensibly sit down to a game of poker without knowing that three of a kind beats two pair, no competent practitioner would take on the FCC without knowing the somewhat more complex rules of that agency’s regulatory game. And, sometimes, part of the job lies in knowing how to navigate those rules most advantageously.

So we take notice when the FCC proposes to change its procedures, as it did in two recent Notices of Proposed Rulemaking (NPRMs).  By and large the amendments are meant to serve laudable goals:  to make FCC proceedings more efficient and transparent, and to forestall some of the more common forms of abuse.

One NPRM proposes internal housekeeping changes which would:

• allow the staff (in place of the full Commission) to dispose of frivolous or repetitive requests for reconsideration;
• allow the FCC to amend  an action (as well as to set it aside) within the first 30 days;
• expand the use of electronic filing and notification;
• close some of the 3,000+ dockets that have become inactive;
• split overly large dockets; and
• clarify the effective date of new rules.

In a separate NPRM, the FCC takes on the always-controversial subject of its ex parte rules.

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The FCC has received approval from the Office of Management and Budget to implement its new rules clearing wireless microphones out of TV Channels 52-69 (the 700 MHz band). We reported on the adoption of those rules last month. OMB approval affects some of the deadlines in the clearing-out process. Those deadlines are now as follows:

• At any time on or after February 17, 2010, Public Safety and commercial licensees who are ready to occupy 700 MHz band channels may give notice to wireless microphone users to clear out.  (See Section 74.802(e)(2))
• Effective February 28, 2010, anyone who sells or leases wireless microphones (or offers them for sale or lease) must provide a “Consumer Alert” on their websites, in their product catalogs, and on microphone packaging, using FCC-specified wording.  (See Sections 15.216 and 74.851(i)).
• Effective June 15, 2010, any wireless microphone that operates above 698 MHz must be for export only and labeled that it may not be operated in the United States. (See Section 74.851(h)).

The June 12, 2010, deadline by which all wireless microphone users must stop operating on Channels 52-69 (698-806 MHz), remains unchanged.

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Waiver makes remote-control TV device available to police and firefighters.

Start with something the size of a beer can. Put a wheel on each end, and a TV camera inside, peering out. Pack in a lot of electronics, motors, and batteries. Make the unit able to survive repeated 30-foot drops, but keep the weight to just over a pound. Provide a separate, hand-held controller with a joystick to drive the unit, and a TV screen to show the user what the unit sees. 

The result is a surveillance robot called the “Recon Scout,” which the FCC recently authorized under a waiver.

The U.S. military has been using the device in Iraq and Afghanistan for a few years now. Before entering a building, troops can toss a Scout into an upper-story window and steer it down the stairs and through the rooms to detect hostile persons and size up their armament.

With the FCC waiver in hand, U.S. police and fire departments, and security personnel in critical infrastructure industries, will have access to the same technology. Typical applications are likely to 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. A police task force told the FCC, after testing the Recon Scout, “We don't feel comfortable without this thing now.”

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Action adds more time, more quantities to 2006 waiver

Just two weeks after affirming a 2006 waiver for body-scanning security devices, the FCC has now extended that waiver by another year and upped the allowable sales by another 200 units.

The action coincides with news reports that the Transportation Safety Administration is increasing the numbers of body scanners at U.S. airports in response to security threats, including an individual who allegedly smuggled explosives aboard a U.S. aircraft in his clothing last Christmas.

Read the FCC’s order here.

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Dismissal of reconsideration request comes with qualified endorsement of open-source systems.

Someone – let’s call him Bob – wants to secure a room. But in Bob’s universe, there are no locks. So Bob invents one, and installs it. And realizes he has a huge advantage over would-be intruders. Only Bob knows how the lock works. So no one else knows how to pick it. Bob sets about keeping his lock design a secret.

Alice also needs to secure a room, and she also invents a lock.  Unlike Bob, though, Alice publishes her design – not the set-up for a particular key, of course, but the details of the overall mechanism.

Bob thinks Alice is nuts. Why tell people how your lock works? They’ll just pick it more easily.

Fine, says Alice, good luck keeping your design a secret. It’s going to get out, no matter what you do. And frankly, Bob, your lock probably isn’t all that great. Okay, neither is mine. Not yet. But now that it’s published, people will suggest improvements. Students will do Ph.D. dissertations on making it better. Companies will compete to develop stronger versions. And long after your design has leaked, and instructions for picking it are all over the Internet, my vastly improved lock will be far more secure. Even though everybody will know how it works.

Alice, in short, supports open-source systems. Bob favors what open-source fans deride as “security through obscurity”.

Software-Defined Radio

For the last few years, the FCC has been playing a Bob-like role. Not about mechanical locks, of course, but over security precautions for software defined radios (SDRs). Those are radios that can change their FCC-regulated properties – frequency band, power, bandwidth, modulation, etc. – under software control.

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Billions in broadband stimulus cash up for grabs – Deadline for applications: March 15, 2010

In the American Recovery and Reinvestment Act of 2009, known to some as the Gravy Train Act, but more generally known as the Stimulus Act, Congress allocated $2.5 billion to the Rural Utilities Service (RUS) and $4.7 billion to the National Telecommunications and Information Administration (NTIA). The money was to be doled out, in the form of grants or loans, to worthy projects designed to bring new or improved broadband service to America. As we reported last year, NTIA and RUS originally planned to make these awards in three tranches beginning in June, 2009 and ending before the September 30, 2010 award deadline imposed by the Stimulus Act.

Unfortunately, it’s harder to give out millions of dollars than you might expect. So far these agencies have managed to open only one application tranche, and have issued only a handful of grants.   Of course, they did get far more applications (2,200) than they had expected, which slowed things down. And the applications themselves required vast amounts of supporting data that was onerous in the extreme (the word “overkill” comes to mind) that had to be generated by the applicants and digested by the agencies. That slowed things down, too.

With the September 30 deadline fast approaching, each of these agencies has issued a second “Notice of Funds Availability” (NOFA) to distribute the remaining Stimulus Act funds for broadband projects.  Given the time constraints and the amounts of money already applied for, the third application window has been eliminated – meaning that this is the last opportunity to make a grab for any of this stimulus cash.    The deadline for filing applications for these funds is March 15, 2010. While applications can be submitted as early as February 16, there is no advantage in filing early other than beating the last minute rush.

Even if you are familiar with the NOFAs issued last year for the first tranche of funding, you still need to study these new NOFAs closely, because substantial changes have been made to the funding programs. Happily, many of these changes simplify what was universally understood to be an unnecessarily complex application process developed for tranche 1. Other changes relate to the prioritization of the awards.

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FCC formalizes coordination procedures between the birds, the B’s and the C’s

The FCC has issued a Report and Order adopting new rules formalizing frequency coordination requirements between Earth Stations in the Geo- and Non-Geostationary Orbit Satellite Services (GSO/NGSO) and Broadcast Auxiliary and Cable Television Relay Service (BAS/CARS) Stations in the 7, 10 and 13 GHz frequency bands.

Satellite operators use these bands to talk to their “birds” (satellites) through uplink and downlink earth stations. The same bands are used by BAS/CARS stations for fixed and mobile microwave feeds to TV stations and cable systems (such as studio-transmitter links and relays for news and other remote programming). The FCC normally requires interference mitigation through a coordination process prior to filing for a new license. That process involves sending notices to anyone in the FCC’s license database who might be affected, waiting 30 days for responses, and resolving any objections. The process is complicated enough that most applicants farm it out to  an engineering firm (such as Comsearch, Inc.),

Formal procedures have been in effect for some time for coordination between GSO/NGSO applicants and existing GSO/NGSO operations. Ditto for coordination between BAS/CARS applicants and existing BAS/CARS operations. But the Commission has not previously formally adopted any procedure for coordination between the two types of services. The FCC has now decided that the same “notice and response” rules and procedures will be in effect for coordination between as well as within the various services, when BAS/CARS stations are at fixed locations.

While the notice and response system works fine for fixed stations, it is not so simple for stations which move around, because you can’t coordinate if you don’t know where your station will be located at any given time. Therefore, the FCC has permitted mobile or temporary fixed BAS/CARS applicants to coordinate on an ad hoc informal basis, often through a third party like the local chapter of Society of Broadcast Engineers (SBE), which keeps track of who is doing what around town and when they plan to do it. The FCC has decided that all GSO/NGSO earth station applicants must use the notice and response system to coordinate with all BAS/CARS licensees, but temporary fixed and mobile BAS/CARS applicants may choose between notice and response and ad hoc coordination with GSO/NGSO entities.

When responding to a coordination request, temporary fixed and mobile BAS/CARS licensees are expected to seek protection only for frequently used locations and not for the entirety of a wide geographic area. The receive location for a temporary fixed or mobile system may be protected, as may frequently used program origination venues such as arenas, stadiums, and convention centers.

The FCC also looked at coordination in the 10 GHz band, used by terrestrial fixed microwave services and NGSO satellite links.  A while back, terrestrial operators proposed a “Growth Zone” policy, under which they could ask satellite operators to protect not only an existing path but also an anticipated future growth path. The FCC neither accepted nor rejected the idea but declined to adopt it at this time on the ground that the satellite parties who originally supported it are no longer pursuing 10 GHz licenses.   If the issue is raised again in the future, the FCC will take a new look at it.

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FCC moves to allow 77-81 GHz radars inside storage tanks.

Driving through an industrial area, looking at the huge storage tanks that dot the landscape, don’t you wonder how the users of the tanks know how much stuff is inside? Neither did we, until recently. If we thought about it at all, we imagined some kind of giant float, like the thing in the back of the toilet, except much bigger. But that couldn’t be very reliable, considering it’s not all that reliable in the toilet, either.

Many of the big tanks have a better system. A radar device sits up on the ceiling, looking down. It transmits short pulses, measures the time they take to come back, and computes the distance to the surface inside. Using radar avoids problems of corrosion, contamination, and the endless repairs needed for moving parts in the vicinity of liquids.

Other equipment inside the tank – valves, agitators, filling pipes, and so on – also reflects radar signals, as do the tank walls themselves, and that can lead to errors. One solution is a radar beam narrow enough to miss the other structures and strike only the liquid directly below. But then those pesky laws of physics intervene. The most feasible way to produce a narrow beam, using a reasonably sized antenna, requires transmitting at high frequencies.

The manufacturers of tank radars favor the 77-81 GHz band. This is well up in the nosebleed portion of the spectrum, among the very highest frequencies the FCC has ever authorized. From an engineering standpoint, it is an excellent band for the purpose. Not only do signals at these frequencies form tight beams, but they are absorbed by metal and concrete tank walls, and so do not escape the tank to threaten interference to receivers outside.

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Waiver that allows devices upheld over objections of communications company

Many of the body scanners popping up nowadays at airports (and in New Yorker cartoons) form an image by scanning with radio waves at very low power. Like most devices that use radio, the scanners come under FCC regulation. But the particular form of radio signal they use does not fit well into the relevant FCC rules. The device accordingly operates under an FCC waiver, which has been in effect for more than three years.

A few companies initially opposed the waiver, fearing that the scanner might cause interference to their radio-based communications systems. In response, the FCC imposed conditions on the waiver intended to minimize any likelihood of interference.

Still, one of the waiver opponents was not satisfied, and asked the FCC to reconsider the waiver grant. It argued that the FCC had underestimated the interference potential. In addition to the existing conditions, it said, the FCC should impose an additional half-dozen requirements – for example, that the location of each scanner be made public 30 days in advance, and that the opponent be able to shut down scanners preemptively at certain locations. None of these conditions had ever been asked of a waiver grantee, even in cases with far higher interference potential.

The FCC denied all of the requests, on the ground that the nature of the device, together with the existing waiver conditions, reduced the risk of interference enough to make further precautions unnecessary. Chairman Genachowski noted the agency’s “important role in promoting the development of innovative technologies to ensure the safety of the public.” The FCC did reiterate that scanner users must eliminate any interference that occurs. And it reminded the manufacturer of its obligation to maintain its own list of locations at which scanners are installed, and to keep the list updated as units are moved and sold.

Step in, please. Raise your arms. Have a good flight. Next.

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With “Reboot.FCC.Gov”, FCC solicits public input to improve public interaction with agency

Depending on who you ask, 2010 may or may not be the start of a new decade. Depending on who answers, 2010 may or may not be the start of a new FCC. That’s because the FCC is relying on you (and you and you, the guy in the brown shoes reading this during his lunch break) to help decide on the direction in which the agency should be moving. They’ve labeled this process “Reboot.FCC.Gov” and, like all the kids are doing nowadays, they’ have not only set up a website at that domain, but also tied the whole thing together with the Blogging, and the Twittering and the Facebooking and the YouTubing (there’s a bunch of other social media connections as well, including, for some reason MySpace, in case the next big indie band wants to participate).

A more conventional format was used to launch the rebooting process on January 13: a press release (the website does contain a one minute “welcome” video from FCC Chairman Julius Genachowski).  As that release explains, the Commission is “soliciting public input on ways to improve citizen interaction with the FCC.” The Chairman elaborates on this, explaining that the goal is to “get input from all corners of the country on ways to improve usability, accessibility, and transparency across the agency.”

The project’s efforts focus on five key elements:

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Changes accommodate widespread unauthorized use of wireless mics – some uses prohibited, new labeling rules, temporary power limits imposed

The FCC has bitten the bullet and taken steps to clear the 700 MHz band of wireless microphones in order to make room for new uses. At the same time, it has legalized these devices in the hands of formerly unlawful users.

Wireless microphones are ubiquitous. We see them on live and televised music shows and in TV news reporting. They are just as important, although less visible, when hidden under clothing in movies and TV drama and in live theater; they are equally indispensable to sports arenas, houses of worship, community centers, universities – anywhere that one person speaks to many. Even the FCC’s own meeting room has a few.

Most professional wireless microphones use unoccupied channels in the TV bands. These do not cause interference to TV reception because the large users, and the companies that sell to small users, are careful about avoiding TV channels in use. Even the organizations devoted to protecting broadcast spectrum have accepted wireless microphones.

Until now, the use of wireless microphones required an FCC license. Eligibility was strictly limited to broadcasters and radio, TV, cable, and movie production, and a few other groups. All other users – music venues, Broadway shows, churches, garage bands – have been operating illegally. These folks are supposed to use non-TV frequencies, but the TV-band microphones work better, and so are by far the most popular. Even so, the unlicensed use of wireless microphones caused no trouble, so the FCC left things alone.

Then came the digital TV transition, in the course of which the FCC repacked the channels to free up the 700 MHz band (the channels formerly known as TV Channels 52-69) for other uses. But some wireless microphones left over from before the transition still operate in that part of the band. These may cause problems for the new users of 700 MHz, primarily public safety and commercial applications.

The FCC has now issued a 101-page Report and Order and Further Notice of Proposed Rulemaking that attempts to both clear the 700 MHz band and legitimize the non-licensed users.

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Better understanding of do-it-yourself licensing arises from interference dispute

Down here in the Commlawblog bunker, we always get excited when the FCC tries out a new approach to licensing. (Maybe we need to get out more.) True, auctions have their place; and the file-your-application-and-wait procedure has a long and venerable history. But we sat up and took notice back in 2005 when the FCC announced it would try do-it-yourself licensing in the 3650-3700 MHz band. It goes like this:

• All channels are shared by all licensees wanting to use them.
• Every user initially obtains a non-exclusive, nationwide license that does not specify locations of operation.
• Transmitters must incorporate a “contention-based protocol” capable of automatically avoiding interference to other users on the same frequency.
• Users must register their specific locations and frequencies in a database on an FCC website. They are requested to consult the database first, to avoid interfering with existing operations.
• The FCC gives new registrations a cursory review before accepting them into the database, but does not ordinarily check for interference to other users.
• “Licensees of stations suffering or causing harmful interference are expected to cooperate and resolve this problem by mutually satisfactory arrangements” – i.e., without running to the FCC.

The rules have been challenged by advocates of other arrangements – especially those who favor auctions for exclusive licenses – but the FCC has held fast.

Now, thanks to an interference dispute in Puerto Rico, we have a clearer idea of how the FCC expects the rules to work.

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Regular readers know that the FCC adopted rules to allow new, unlicensed, wireless devices to operate in unused channels of the broadcast television spectrum just over a year ago. This was an exciting development for wireless broadband access and content providers, but incumbent users (such as television broadcasters and wireless microphone operators) worried about interference. Therefore, the FCC required that white space devices – which it calls “TV band devices” – must prevent interference by having both spectrum-sensing capability and also geo-location capability with access to a database of licensed users. The idea is that a device will: (a) access a database; (b) let the data base know where the device happens to be located;  and (c) receive a list of available frequencies for that location.  As an additional safeguard, devices will also detect other users and drop off their frequencies.  A separate and more stringent procedure will authorize “sensing only” devices that lack geo-location.

Obviously, establishing a database is a crucial step in the process of designing and testing these new devices because they must be able to interface with it.  Accordingly, on November 25, 2009, the FCC’s Office of Engineering and Technology issued a Public Notice “inviting proposals from entities seeking to be designated TV band database managers.”  

This is in part a creative design competition: the FCC specifies only that each design must include “basic functional architecture . . . a data repository, a data registration process, and a query process.” Beyond that, prospective database managers are limited only by the scope of their imaginations and the number of pipe cleaners they can grab off the craft table.

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Tips on how to avoid getting blind-sided in EBS lease negotiations

Yes, attendance at the NESBA, 4G World and WCAI events may have been a bit sparse, and the merger of Sprint and Clearwire’s 2.6 GHz spectrum properties might seem a harbinger of inactivity in the Educational Broadband Service (EBS), particularly for those with EBS capacity to lease. But don’t be fooled.

Why worry about leasing just now? A couple of reasons. If you have EBS capacity that you already leased more than four years ago, there’s a good chance that the lease will end in the next five years – and (as discussed below), it’s never too early to scope out the options that will be available when your existing deal expires. And if you have EBS capacity that is not currently leased, don’t be surprised if you get approached in the near term about entering into a lease deal – in which case, again, it would be good to know what your options are. So if you have EBS capacity – whether it’s leased or not leased – you should consider the factors described below. From my experience, forethought and preparation relative to these items can result in serious benefits, and avoid serious mistakes.

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Novel technology approved after almost two years

Regulars here know about the problems faced by innovators whose ideas do not conform to the FCC’s technical rules.

A recent case in point is L-3 CyTerra, a division of L-3 Communications Corporation. Its new radar device, intended for police, fire, and homeland security personnel, can look through walls to detect people on the other side – even immobile hostages or unconscious fire victims.

Most civilian radars use the same principles worked out during World War II. They emit a short pulse of radio waves at some frequency and analyze the echo to deduce the direction, the distance, and possibly the speed of the target. The FCC routinely approves this kind of product.

But that approach would not do the job for L-3 CyTerra. It is easy enough to send a radar pulse through a wall and into a room on the other side. Coming back, though, would be dozens of echoes bouncing off multiple walls, furniture, and people, with no way to sort them out.

Instead, the L-3 CyTerra device sends pulses on 200 different frequencies, one at a time, ranging in sequence from 3101 to 3499 MHz at 2 MHz intervals. The whole cycle repeats 54 times per second. Each of the pulses still reflects from multiple surfaces. But the circuitry combines the echoes at different frequencies in such a way that the echoes from stationary objects fade into the background while those from moving objects stand out. The system is sensitive enough to detect the chest motions of a person who is unconscious but breathing, or the slight swaying of a person trying to stand perfectly still.

A radar that uses 200 different frequencies is not consistent with the FCC’s technical rules. No rule expressly forbids such a device, but neither is there a rule under which the FCC can authorize it. L-3 CyTerra accordingly requested a waiver, which the FCC granted. Read the waiver order here.

The waiver grant is the good news. The bad news is the 21 months the FCC needed to process the request, despite of a total lack of opposition. (That in itself is unusual; here in Washington, somebody opposes almost everything.) It may be that the FCC staff took time at the front end to consider whether some other procedure, less time-consuming than a waiver, might have accomplished the same purpose. Another possible source of delay is the same one we see every four or eight years: a new Administration installs a new FCC Chairman, who in turn re-staffs the top FCC posts with new people, who then need time to familiarize themselves with a very long list of pending matters.

But let us not dwell on the negatives. We can applaud the fact that, thanks to technology and the FCC’s approval, our first responders have a new tool to help them help us, particularly in emergency situations. Next, maybe somebody will develop a type of radar capable of detecting and rescuing immobile administrative proceedings from the file drawers of our federal agencies . . . 

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Until now, communications were only skin deep.

The FCC has granted a technical waiver to EnteroMedics, a company that has developed an implanted device used for treating obesity, among other conditions.

The device, to be marketed under the name “Maestro”, stimulates the vagus nerve, and thus intentionally disrupts certain communications between the brain and the digestive tract. One outcome is that people eat less and lose weight.

The device incorporates a small radio antenna surgically planted under the skin. A belt-pack outside the body provides power through the skin (much as an electric toothbrush gets power from its stand), and also provides communications to program the device. In order to keep the device small and simple, the designers arranged for the two functions to share the same radio frequency.

Different FCC rules govern the power and communications functions. But both allow use of the particular frequency the company prefers. Moreover, the power function and the communications function each complies with all the specifics of the relevant rule.

But there is a problem. The two functions comply only when used separately. The permitted levels for power are much higher than for communications. When the two operate together, the communications signal rides on the much stronger power signal, and exceeds the limits in the communications rules.

“So what?” you might say. The purpose of both rules is to prevent interference to other users. The combined device is no more interfering than a version without the communications capability – and a power-only version would comply. For the FCC to block the device because of interplay between the rules would make no sense.

The FCC agrees. In its own words: “[T]here is no more interference potential from allowing the EnteroMedics devices’ communication signal emissions to exceed the limit . . . than if the devices used different circuitry to generate separate compliant power and communication signals that were simultaneously transmitted . . . .” 

The FCC accordingly issued a waiver allowing EnteroMedics to proceed. No doubt their gut told them it was the right thing to do . . .

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New-technology advocate talks about delays at the FCC

You have read the recommendations of our colleague Mitchell Lazarus, both for industry and for the FCC, on how to alleviate problems caused by long delays at the FCC in approving new technologies.

Now hear Mitch address the issues in his own voice, in a recent MyTechnologyLawyer.com interview with Andrew Kreig. Listen on-line or download.  Mitch’s two segments begin 18 minutes in. And if you want to put a face with Mitch’s voice, his photo adorns the interviewer’s blog (which hails Mitch as a “spectrum expert”).

Mitch is the second FHH attorney to be interviewed on MyTechnologyLawyer.com in recent weeks. Last month it was Kevin Goldberg, who expounded on sports credentialing and sports media. You can listen on-line to, or download, Mr. G as well.

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FHH lawyer tries to move things along at the FCC.

Our colleague Mitchell Lazarus often helps clients developing new radio-based technologies to obtain rule changes or waivers from the FCC. Those who have been through the process know it is long, slow, and frustrating.

A recent FCC Notice of Inquiry asked for comment on how to reduce this kind of regulatory delay.

Mitch told them.

Read his comments to the FCC here.

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Last month we reported on the issuance of a Request for Further Comments and Further Notice of Proposed Rulemaking in the Commission’s long-running effort to finalize rules for Access Broadband-over-Power-Line (Access BPL). The deadlines for those comments have now been set and published in the Federal Register: Comments are due on September 23; reply comments are due October 8.

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If you are interested in the Broadband Stimulus programs funded through the American Recovery and Reinvestment Act of 2009 (and administered by NTIA and RUS), you have probably been following our “Broadband Stimulus 101” series of posts. We have compiled those posts into a special edition of our telecom newsletter, “FHH Telecom Law”.  The result is a handy primer which assembles a considerable amount of useful information in one place. You can find a PDF version of that edition by clicking on the image of the newsletter accompanying this post. But be sure to keep checking back here at CommLawBlog.com for further updates, developments and insights as the BIP/BTOP application processes plow ahead. 

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A court decision last year ordered the FCC to revisit certain technical aspects of its rules on Access Broadband-over-Power-Line (Access BPL), a technology that carries broadband services over electrical power lines. The FCC has now responded with a defense of its earlier decision, combined with a willingness to rethink one of the more controversial details.

Our earlier summary of the dispute is here.

Access BPL has lost much of its gleam in the five years since the FCC adopted the rules that were at issue in the 2008 court decision. Back then, BPL was heralded as the “third pipe” for broadband, a viable competitor to DSL and cable, and a promising solution for hard-to-serve rural communities. Now, few utilities still offer BPL broadband services to end users. Most new installations are used only by power companies themselves, for reading customers' meters and system-related communications.

BPL works by transmitting radio-frequency signals over the power lines. Some of that energy leaks off, in the form of radio waves, potentially interfering with radio reception. The question is, how big is the interference threat?

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Post-award chores abound for successful stimulus applicants

If you are lucky and perseverant enough to be awarded broadband stimulus funds, your travails are not yet over. In fact, they may just be beginning. Awardees under both "BIP" (the program administered by the Rural Utilities Service)  and "BTOP" (the NTIA-administered program) must comply with a number of post-award requirements.  We're providing a thumb-nail introduction to those requirements below.  As you review the various post-award obligations, keep in mind the stern admonition, at least for BIP winners, that in the event of failure to comply with the terms of an award, "RUS may exercise rights and remedies." That vague but menacing threat is intended to ensure that winners carefully comply with the various post-award requirements.

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August 14 deadline for the first $4 billion looms

As we previously reported, on July 1 the Rural Utilities Service (RUS) and the National Telecommunications and Information Administration (NTIA) released the long and eagerly awaited rules governing the distribution of billions of dollars in stimulus funds to expand broadband service in the United States. The 121-page tome, dubbed a Notice of Funds Availability (NOFA), lays out in detail how much money is to be distributed in the first funding round, adopts critical definitions of "rural," "unserved" and "underserved" areas, specifies how the applications will be "scored" to determine who gets the money, and prescribes the elements that must be included in each application on pain of dismissal. We will address these elements below, but be warned: some of the provisions will be so difficult to comply with that anguished outcries from prospective applicants have already been heard on Capitol Hill.

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Expanded conditional license opportunities, greater tolerance for adaptive modulation in the works

Microwave radio serves as the nation's nervous system. (Microwave ovens, a different technology, take care of the stomach.) These radios operate through the ubiquitous sideways-facing dishes and domes on radio towers, water towers, and tall buildings. Their signals regulate the movements of railroad trains, control the electric grid and natural gas and oil pipelines, carry long-distance telephone calls and Internet traffic, transport TV programming to cable systems, send 911 messages to the local police station, deliver cell phone calls to the towers, tell the ATM your bank balance, and carry vast amounts of data that fuel ordinary businesses nationwide.

Many of these systems operate at availability levels in excess of 99.9999% (“six nines,” in industry parlance). This allows for outages adding up to no more than 30 seconds per year – not bad for systems that sit high up outdoors, exposed to the weather year round.

The FCC is considering three changes that would help improve the operation of these systems.

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$4 billion in broadband stimulus funding available for the asking, with more on the way

On July 1 the National Telecommunications and Information Administration (NTIA) and the Rural Utilities Service (RUS) of the Department of Agriculture released their initial “Notice of Funds Availability” (NOFA) with respect to two broadband-related programs funded through the American Recovery and Reinvestment Act of 2009 – what many have dubbed simply the Stimulus Package.  Applications for funding in this first round will be accepted from July 14, 2009 at 8:00 a.m. (ET) until August 14, 2009 at 5:00 p.m.   

In other words, the teller’s window is about to open, the “Free Money – Come and Get It” sign is about to go up, and the line is getting ready to form. So come on down, but first be sure to familiarize yourself with the separate and distinct programs through which funds are being made available, the various eligibility requirements associated with each program, the conditions, limitations, expections, etc. germane to each, and the extensive application requirements. All this and more is contained in the 121-page NOFA.    

If you want to be first in the door, you should start reading the NOFA right away: the complex and detailed directions are, at least at first glance, daunting.

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New “Medical Body Area Network” device proposed

Having previously “gotten under our skin”, the FCC now proposes to lie on top of us. They have issued a notice of proposed rulemaking seeking comments on the spectrum allocation and service rules for yet another wireless medical telemetry device -- a Medical Body Area Network (MBAN). The idea is to place multiple inexpensive, wireless sensors on a patient’s body to read temperature, pulse, blood glucose level, blood pressure, and so on. Little built-in antennas would send the data wirelessly to a hub device that is either worn by the patient (if there is room) or located nearby. The hub might process the data before relaying to a point elsewhere in the facility.

With respect to spectrum allocation, the proponent (GE Health Care) seeks 2360-2400 MHz – currently allocated to airborne telemetry – which is primarily used by the Federal government. Other parties interested in use of the spectrum for telemetry appear to be concerned about interference, and have counter-suggested an allocation of 2300-2305 and 2395-2400 MHz. Other proposed possible allocations include 2400-2483.5 MHz, which is currently allocated for use by: Industrial, Scientific and Medical equipment; amateurs; fixed and mobile services. This band is also heavily used by Wi-Fi, Bluetooth, cordless phones, and a vast host of other consumer devices. Another suggested alternative is 5150-5250 MHz, allocated to aeronautical radionavigation but also available on an unlicensed basis for wireless data networks.

With respect to a licensing regime, the FCC asks for comments on three alternatives: (1) Part 90, with non-exclusive individual licenses subject to frequency coordination and entitled to protection from interference; (2) Part 95, like some other medical telemetry, licensed by rule rather than individual licenses, and again entitled to a degree of interference protection; or (3) Part 15 unlicensed operation with no interference protection.

Not mentioned in the NPRM is whether the network will also interface with the patient’s iPod.

The deadlines for comments and reply comments have not yet been announced.

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First reaction to the Big Decision

[Blogmeister's note: Our crack team covered the oral argument in Fox last November, and will be providing additional coverage of the Court's decision released April 28.  The following is one commentator's view of the landscape.]

The Supreme Court has issued its long-awaited decision in FCC v. Fox Television Stations, Inc., the case involving the application of the FCC’s indecency policy to “fleeting expletives”. By a 5-4 vote, the Justices concluded that the FCC’s action was consistent with its statutory obligations under the Administrative Procedure Act. Accordingly, they reversed the contrary decision of the U.S. Court of Appeals for the Second Circuit and remanded the case back to the Second Circuit. Score one for the Commission.

While any decision favoring the Commission’s indecency policy in any way is troubling, the good news here is that the Supreme Court’s ruling changes very little on the indecency front. To the contrary, its primary effect in the indecency area is to set the stage for the next, and far more important, act in this long-running drama.

But the news is not all good. Lurking behind the high profile “celebrities talking dirty on TV” allure of the case is a major shift in a seemingly mundane legal doctrine, a shift that could affect FCC regulatory activity in all respects for years to come. So while many commentators may choose to dwell on the obvious “indecency” aspects of the ruling, the real importance of this decision lies elsewhere.

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This item is admittedly obscure, even by our standards. But we strive to meet the needs of even our most specialized readers.

Since 1996, the FCC has allowed vehicle-mounted radars in the 76-77 GHz band. This band is well up into the “nosebleed” region of the spectrum, approaching the highest frequencies ever authorized. If this band were a sound, only very small dogs would be able to hear it.

The radars up there help to guide the automatic braking systems offered in some high-end cars. They are allowed to emit considerable power – up to 68 watts –when the vehicle is in motion, to achieve adequate range and precision. Greatly reduced power limits apply when the vehicle is stopped, as at a traffic light, in order to protect passing pedestrians from excessive radio-frequency exposure.

A company called Era Systems has asked the FCC for a waiver to allow stationary (non-vehicle) use of radars in this band. Era hopes to install up to ten units on structures at the Atlanta airport. They will be used track the locations of aircraft and vehicles on the ground in ramp and gate areas for “airport management purposes,” possibly a euphemism for keeping things from running into each other.

The requested power is 55 dBm (316 watts), somewhat higher than the maximum for vehicle radars in motion, and much higher than the one-fifth watt limit for stationary vehicles. Era proposes to address the radio-frequency exposure problem by blocking radar emissions towards roads open to the public. Its system uses the same radar modulations as the vehicle units do, and so (according to Era) should not interfere with vehicle radars even if they could see its signals.

The FCC public notice is here; Era’s request is here.  Comments are due on May 6, and reply comments on May 18, in docket ET Docket No. 09-55.

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Pesky strings from Dillon’s Rule may complicate formation of public/private partnerships

As interest in snagging a piece of the broadband stimulus builds to fever pitch, it may be a good idea to sound a cautionary note with respect to one obscure, but potentially important, quirk in U.S. law that could mess up a lot of plans. (We have previously reported – here, here, and here – both on the American Recovery and Reinvestment Act of 2009, a/k/a the Stimulus Package, and on the various administrative efforts being made by the FCC, NTIA and RUS to flesh out the skeletal details provided by Congress in the Act itself.) 

I’m talking about Dillon’s Rule. Never heard of it? Not surprising. Despite its importance, it’s easy to overlook, unless you happen to have an interest in the jurisprudence of state and local governments. But overlook it at your peril. Dillon’s Rule could effectively bar, or at least seriously complicate, efforts by private entities to successfully dip into the deep pool of stimulus funds through the device of public/private partnerships (a device recommended by a number of supposed gurus).

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As radio transmitters get smaller, they are turning up in the oddest places. Including people's innards, with implanted medical devices now sending out reports on conditions inside. These include cardiac pacemakers and defibrillators that have monitoring and reporting capabilities, and devices used for diabetic glucose monitoring and control.

Two recent FCC actions will facilitate this ongoing communication through the skin.

One is an expansion of the ten-year-old Medical Implant Communications Service, now renamed the Medical Device Radiocommunication Service, or MedRadio. The new rules increase the available spectrum for implants from 402-405 to 401-406 MHz. External, body-worn devices are also allowed in the newly added 401-402 and 405-406 MHz segments.

Power is limited to 25 microwatts. Each device must monitor the frequencies it intends to use before it transmits, except that units can just blast away (if that is the right word, at these power levels) using 100 or 250 nanowatts maximum, depending on frequency, with strict duty cycle limits.

The transmitters are “licensed by rule.” This means they are deemed to be licensed even though the user does not actually have a license – just like CB radios. In fact, to get around a pesky statute that limits license-by-rule to just a few services, the implanted radios are defined to be CB radios. Breaker One-Nine, good buddy, and how’s the spleen doing?

The order adopting the new MedRadio rules is here.  

In a related action, the FCC issued a Notice of Proposed Rulemaking concerning “implantable neuromuscular microstimulation devices.” These would be multiple devices surgically installed in a person to communicate with each other, under control of an outside device, essentially operating as an artificial nervous system. Beneficiaries could include those with spinal cord injury, diseases such as multiple sclerosis, polio, cerebral palsy, and ALS, and combat injuries.

To handle these devices, the FCC proposes to make available one or more of the segments at 413-419, 426-432, 438-444, and 451-457 MHz. It also lays out ideas for operational and technical rules. The NPRM is here.

Maybe now men will finally get in touch with their inner feelings. By radio.

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Reconsideration petitions in the FCC’s “white space” proceeding – about unlicensed devices in locally vacant TV channels – show the controversy is far from over.

After carefully studying 35,000 comments, dating back to 2002, the FCC issued an order last November that tried mightily to balance the rights and interests of TV broadcasters and viewers, manufacturers and users of the wireless microphones in TV spectrum, would-be manufacturers and users of the new unlicensed devices, and cable companies, along with many other groups that shouldered their way into the proceeding. We reported on the outcome here.    

And everybody went home happy. Except the nineteen parties and groups, representing every facet of the proceeding, that last week formally asked the FCC to reconsider its decision. They include:

• broadcast-related interests who seek a return to square one, arguing that the record does not support any unlicensed devices on TV channels;
• LPTV stations that lack needed protection for ongoing analog operations;
• petitioners objecting to a great many specific technical rules, including emission limits, separation requirements, sensing levels, power levels for first-adjacent channels, special procedures for sensing-only devices, fixed base station heights, and many others;
• cable satellite TV providers that claim inadequate protection for headends and cable-ready TV sets; and
• those presenting other issues: real-time operation of the database that catalogs available TV channels; database information security and registration requirements; pending negotiations with the Mexican government; rejected proposals, such as licensed use of white space frequencies; and too many more to list here.

In addition to these petitions are the court cases brought against the same rules by broadcasters and users of wireless microphones. Details are here. The cases have since been consolidated into one, which will likely be set aside for the year or two (or more) it will take the FCC to resolve the reconsiderations.

The FCC will soon ask for comments on the reconsideration petitions. We’re running a pool here in the commlawblog bunker. The number 35,000 is taken.

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20-minute ex parte meetings may be scheduled from March 20 – April 3

As we have previously reported, the FCC has no direct role in doling out the $6.8 billion available for broadband stimulus under the American Recovery and Reinvestment Act (what we know as the Stimulus Act). However, the FCC is charged with consulting with the Department of Commerce’s NTIA and the Department of Agriculture’s RUS in setting some of the basic criteria for deciding who gets the funds.  Among the most important issues facing the money-meisters in the next month are: coming up with basic definitions for “unserved” and “underserved” areas and “broadband” (how fast a speed must you provide to qualify and should different criteria apply to wired vs. wireless systems); what constitutes “non-discrimination” in the provision of broadband; and what network interconnection obligations (including net neutrality) should apply to program recipients. These are questions that the FCC has struggled with for years, but it and its friends at NTIA and RUS must now come up with answers in a matter of weeks. 

The FCC is therefore accepting written comments until April 13 on these issues – lightning speed for any administrative agency. It is also scheduling ex parte meetings with the staff limited to 20 minutes from March 30 to April 3. (Imagine a sort of administrative speed dating with a bell ringing every 20 minutes and parties running from one meeting room to the next.)    Although the FCC’s role is consultative, we do expect the FCC ‘s recommendations to carry some heavy weight in the final outcome of these definitions – particularly since current FCC Commissioner Adelstein has recently been nominated to become head honcho at RUS – so interested parties may want to weigh in. Read all about it here.

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Senate bill calls for “inventory of airwaves” to identify spectrum for more broadband, advanced communications use

With several trillion dollars’ worth of bills stacking up on the kitchen table, the Senate is thinking about searching for quarters under the sofa cushions.

When times get tough around the household, what’s a tried and true way of generating some quick cash? A yard sale, of course. So in these dire economic times, some Senators have proposed – in S. 649, a bill introduced on March 19 – that Congress get ready for a Federal spectrum yard sale by making a list of all the spectrum controlled by NTIA and the FCC.   (The Senators in question are former presidential wannabe John Kerry and co-sponsors Olympia Snowe, Roger Wicker and Bill Nelson.) 

After all, the public picked up $20 billion in pin money from the 700 MHz auction. Maybe lightning can strike twice.

In fairness to the bill’s sponsors, their goal supposedly is to assure that we will all be able to find “additional spectrum” to “meet the growing demands and needs of consumers and businesses alike.”   The bill’s sponsors seem particularly interested in opening up space for more broadband and advanced communications services. But in her statement in the Congressional Record, Snowe correctly observed that “there is no new spectrum to allocate, only redistribute”, which would seem to put the kibosh on the notion of finding “additional” spectrum. So it appears that the sponsors contemplate that spectrum already in use is going to be changing hands – a process which has in the recent past tended to result in payments to the guv’mint.

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The sharp-eyed policy wonks here inside the Beltway spotted a line item in President Obama’s budget proposal called a “spectrum license user fee.” This tax – sorry, fee – would be assessed against users of spectrum blocks that are licensed but not auctioned. These include most AM, FM, and TV, most two-way mobile radio and fixed microwave, and all satellite, amateur radio, and several other categories. Unlicensed spectrum, such as that used for Wi-Fi and Bluetooth, would be exempt. Even so, the new fee is projected to bring in $200 million in 2010, increasing steadily to $550 million by 2019.

Outraged at this extra dip into the pockets of hard-working Americans? We don’t blame you. But don’t call your congressman quite yet. The chances of anybody ever actually paying this fee are small. The reasons have to do with the annual Washington ritual of budget politics.

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The joint NTIA/RUS “request for information and notice of public meetings” we described here yesterday has been published in the Federal Register on March 12. That publication establishes the deadline for written comments as April 13, 2009. Instructions for submission of comments are set out at the end of the Federal Register notice. A couple of tips: if your comments are longer than five pages, you’re supposed to include a one-page executive summary; if they’re 10 pages or more, you also need a table of contents. You can file electronically. In fact, NTIA/RUS would prefer you do so, especially if your comments are 10 pages or longer. One disincentive for paper filers: if you go the paper route, you also have to include a CD or DVD with an electronic version of your submission, properly identified on the label. Let us know if we can be of any help in preparing any submissions you might want to make.

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Lots of questions, not a lot of answers as agencies gear up broadband funding programs

As we previously observed, the newly-enacted-but-still-to-be-implemented Stimulus Package leaves a lot of questions unanswered. Having earmarked billions of dollars for expansion of the country’s broadband Internet facilities and services, Congress dumped into the laps of various agencies the chore of building the Federal systems – essentially, a bureaucratic ATM – necessary to dole out the Big Bucks. But Congress didn’t bother to include any helpful assembly instructions.  

On March 10, in their first joint public appearance to address the issues, the agencies in charge confirmed the existence of questions, but provided precious few answers – which is not surprising, given the inchoate and largely undefined responsibility which Congress handed to them.  The agencies are, of course, doing their diligent best to tackle that responsibility by raising all of these questions as early as possible. But the fact remains that at this point, the questions far outnumber the answers.

The agencies in question are the Department of Commerce’s National Telecommunications and Information Administration (NTIA), the Department of Agriculture’s Rural Utilities Service (RUS), and our pals at the FCC. The Stimulus Package assigns NTIA and RUS – in consultation with the FCC – the task of devising detailed regulations for the funding of proposals to construct and provide broadband service in “unserved”, “underserved” and “rural” areas. So far we’ve seen two steps taken in that process.

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Editors' Note: Let’s be honest. The first day on a new job usually stinks. Everything’s new and different. Everybody’s trying to weasel up to your good side. Big and Important Stuff definitely needs to get done, but right out of the box it can be hard to tell the Big and Important Stuff from the Totally Unnecessary and Possibly Counterproductive Stuff.

As a public service, we here at CommLawBlog have put together a "To Do" List for Julius Genachowski when he arrives on the Eighth Floor of the FCC. (We know he hasn’t been confirmed yet, but who really believes that that’s going to be a problem?)  

But what do we know? The Chairman-Designate would probably benefit even more from suggestions from CommLawBlog readers. We down here in the CommLawBlog bunker merely have our fingers on the pulse of the Regulated Nation; you ARE the pulse of the Regulated Nation.

We’re sure Mr. Genachowski would welcome additional input from the blogosphere for his To Do list. Check out our initial thoughts below, then post your own using the comment box at the end of our list.

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Back in November, the FCC adopted rules that will eventually allow unlicensed communications devices to use vacant TV channels: the so-called “white space” frequencies. We outlined the details here. It took another three months for the rules to make their official debut in the Federal Register. Some of the rules (although not the ones that matter most) take effect in late March. Details are here.   

The February 17 publication in the Federal Register opened the window for aggrieved parties to object to the rules in court. Some have done so.  Two associations of broadcasters, long concerned about unlicensed devices causing interference to TV reception, filed an appeal in the U.S. Court of Appeals for the D.C. Circuit. But TV stations are not the only licensed users of TV frequencies. The wireless microphones widely used for movie and TV production, and at music and sports venues, operate on vacant TV frequencies and could be crowded out by unlicensed devices. A few groups that make heavy use of the microphones – ESPN, the major professional sports leagues, and New York theater owners and producers – filed their own appeal in the U.S. Court of Appeals for the Second Circuit. The two cases will eventually be consolidated into one.

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Is there really a free lunch?

The ink had not even dried on the American Recovery and Reinvestment Act of 2009 (what you and I would call the Stimulus Package) before troubled industries began feverishly scanning the hundreds of pages of legislation to see if there were any goodies in there for them. Telecommunications had not seemed like a particularly troubled sector, at least compared to the manufacturing, financial, retail and other sectors which have been swimming in ever-deepening red ink for the last few months. There was nevertheless a perception that America is falling behind other countries in broadband penetration, and something needed to be done about it – pronto.  Congress therefore graciously set aside $6.8 billion for distribution to the teeming masses yearning to provide, or get access to, broadband.

And teeming masses is right. It seems there is no one remotely connected to the broadband industry who does not feel deserving of his or her fair share of the billions to be distributed. As NTIA and RUS – the two federal agencies primarily charged with administering the program – frantically gear up to distribute vast sums of money in the bureaucratic equivalent of a nanosecond, one naturally asks: how can I get my hands on some of that money? When the cannon sounds and all the buckboards race off to lay claim to great swathes of free money, how can I get there first?

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But the devil is still in the details – information collection requirements stall effectiveness of all the new rules, probably for months.

The TV “white space” rules appeared in the Federal Register on February 17, 2009, and will (at least according to the Federal Register) take effect in 30 days, on March 19 – which is about time, since the rules were adopted by the Commission several months ago.

Despite what the Federal Register says, however, certain of the rule sections involve new information collections and, because of that, require approval from the Office of Management and Budget. These will not take effect until further notice, probably at least a few months. They are the rules concerning the database of occupied channels and the procedures for approving sensing-only devices. Without these, the other rules are useless. The rules not taking effect on March 19 are Sections 15.713 (TV bands database), 15.714 (TV bands database administration fees), 15.715 (TV bands database administrator), and 15.717 (TV band devices that rely on spectrum sensing).

Even after these rules do take effect, we will not see white space devices on the market until well after the database is up and running. The FCC intends to request applications from entities interested in designing, setting up, and operating the database. But the selection process has not yet begun, with the large and complex task of implementation still to follow. Once started, the whole process will take many months, and possibly a year or more.

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The concept of “harmful interference” is central to FCC spectrum policy. The FCC has never said just what the term means. Oddly, though, that might be a good thing.

Nearly every band of the radio spectrum is shared among two or more categories of users. If we think of the spectrum as being spread out horizontally, the users of each band are stacked vertically. To see how this looks, click here.

Each band has a predetermined pecking order among its users: primary, secondary, and unlicensed. The relationships among all of these turn on harmful interference. Specifically:

• “Primary” users are protected against harmful interference from all other users.
• “Co-primary” users – services in the same band jointly designated as primary – may not cause harmful interference to each other.
• "Secondary” users may not cause harmful interference to primary users, and must accept harmful interference from primary users.
• Unlicensed users may not cause harmful interference to primary or secondary users, and must accept harmful interference from everybody.

The notion of harmful interference being key to the whole enterprise, we might expect to find a crisp and objective definition in the FCC rules. But when we look, we find something else. It comes in two parts:

In the case of a radio-navigation service (like GPS) or a safety service (police, fire, distress beacons, etc.), harmful interference is anything that “endangers” its functioning.

In the case of any other licensed service, harmful interference is whatever “seriously degrades, obstructs, or repeatedly interrupts” the service.

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On January 22, President Obama elevated Commissioner Michael Copps to the position of Acting Chairman of the Commission. Copps, who has been a Commissioner since 2001, will preside over the slimmed-down three-person Commission until a permanent Chairman takes over. Former Commissioner Tate left the agency in December  when her term ended, and former Chairman Martin bailed out as of Inauguration Day – leaving Acting Chairman Copps to rule the roost over remaining Commissioners Adelstein (D) and McDowell (R). No word yet on how long it may be before the Commission returns to full five-member strength (or who might be filling at least one of the two empty seats). Repeated media reports have indicated that President Obama intends to nominate Julius Genachowski – an Obama Harvard Law School chum and Chief Counsel to Former FCC Chairman Reed Hundt – to be permanent Chairman, but until the President makes a nomination and that nominee is confirmed by the Senate, Copps is The Man.

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Products today come with dozens of warnings that few people actually read. If the item includes digital circuitry – almost everything does, nowadays – the manual is supposed to include a warning mandated by the FCC. Digital circuits emit radio waves as by-product, and so have the potential to cause interference to radio communications. The FCC not only sets limits on these stray emissions, but also mandates specific warning text for the product’s instruction manual. The required wording first alerts the user to the possibility of interference. The warning for consumer devices (“Class B,” in FCC-speak) goes on to suggest specific ways to fix interference to radio or TV reception. The text for commercial and industrial devices (“Class A”) just warns against operating in residential areas.

Minnesota-based Multi-Tech Systems makes a device that attaches to an office phone system for routing cell-phone calls to and from people’s desktops. It is a Class A device that contains digital circuitry. Multi-Tech duly went through of the required procedures to ensure the stray emissions are within bounds. AT&T successfully tested the device to ensure compatibility with its cell network. With all needed approvals in place, Multi-Tech shipped several hundred units.

The trouble started with a complaint that the product was causing interference to other electronic equipment, particularly speakers and telephone landlines. Some people would just ask Multi-Tech to fix the problem or send a refund. But this party instead went to the FCC. After investigating, the FCC concluded the Multi-Tech product was unlikely to have caused the reported interference. Case closed.

Not quite.

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With much ballyhoo, on December 9 a report from the majority (i.e., Democratic) staff of the House Committee on Energy and Commerce was released, slapping the bejeebers out of Chairman Martin. Titled “Deception and Distrust: The Federal Communications Commission under Chairman Kevin J. Martin”, the report concluded a year-long investigation. But despite a considerable amount of grandstanding on the part of the House Committee, the report itself is disappointing on a couple of levels. 

While it does conclude that Martin “withheld important and relevant data”, “manipulat[ed]” a staff report, “undermined the integrity of the staff”, engaged in “senseless waste of resources”, yadda, yadda, yadda, the report does not contain any truly blockbuster, make-your-eyes-bleed, exposés – no 8’x10’ glossies or lurid videos of Martin in flagrante delicto committing [fill in the political nightmare of your choice here]. In fact, none of the Committee’s charges even seems to rise to the level of a punishable violation of law or rule (although the Committee does suggest that further investigation into some matters may be in order).

More depressingly, though, the report tends to confirm the long-held but seldom articulated beliefs of a number of observers about the way the FCC operates, regardless of who happens to be its Chair. And the odds are that the issuance of the report is not likely to change anything.

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The FCC granted a waiver yesterday (November 21, 2008) for a security-system technology that does not comply with its technical rules. No big surprise – the FCC does that, now and then. But this case is a little odd: the system needed a waiver only because it has a lower potential to cause interference than a compliant system does.

A lot of security systems on the market protect buildings by sensing motion in the vicinity. While these can effectively detect intruders, they also detect dogs, birds, and paper blowing in the wind. A real intruder can easily go unnoticed in the flood of false alarms.

A small New Hampshire company called UltraVision has solved the problem. Using a radar technology originally developed for finding underground pipes, UltraVision’s system not only signals an intruder’s presence, but also registers its size, speed, and direction of travel. The sensors can be programmed to ignore birds and sound the alarm for pedestrians and vehicles, or to alarm only for vehicles over a certain size and speed, or whatever the situation requires. With most false alarms eliminated, security personnel can concentrate on the real threats.

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With extensive protections accorded to licensed operations, the ball is now in the white space proponents’ court

Thudding a 1.3 pound order on the press table late last Friday, the FCC not only ruined a lot of Washington weekends, but ended years of dispute by authorizing unlicensed devices on TV frequencies. A lot of the paper is taken up with the explanations and rationales needed to weatherproof against the inevitable court appeals. But the rules themselves still run to 15 single-spaced pages, making this by far the most complex regime for any unlicensed service.

Down here in the commlawblog bunker, we have long been doubtful that any workable set of rules could adequately protect TV stations and wireless microphones from interference. Poor device performance in recent engineering tests only deepened our skepticism. It does not happen often, but we could have been wrong. The FCC may have pulled it off.  Sure, there is always room to quibble over the numerical details – more channels for wireless microphones, lower detection thresholds, etc.  And we will have to wait and see how the Commission implements the new procedures and polices the marketplace for non-compliance. 

But the basic regulatory structure seems workable.

A rulemaking like this one – dropping new users into an occupied band – always involves a delicate trade-off between power and flexibility for the newcomer, on the one hand, versus protection for the incumbent, on the other. Here, once having made the decision to allow the devices at all, the FCC seems to have resolved most doubts – and there are a lot of them – in favor of the incumbents, and there are a lot of them, too. The new rules protect:

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FCC embraces unprecedented device-by-device testing regimen

Engineering and politics do not mix well.

The FCC encountered that truth again this week when it authorized the use of unlicensed devices in vacant TV frequencies, the so-called "white space" spectrum.

The idea is controversial because unlicensed devices pose a potential risk both to TV reception and to the wireless microphones that use empty TV frequencies. The idea became more controversial three weeks ago when the FCC's own engineers released a report showing that white space devices might indeed cause interference, especially when an adjacent TV channel is in use.  The report concluded, however, that white space proponents had shown “proof of concept.”  The proponents seized on this language as establishing that white space devices could safely be deployed.  I noted then that the Wright brothers had established “proof of concept” at Kitty Hawk – that is, they proved the feasibility of powered, heavier-than-air flight.  But it still took another thirty years to develop safe, commercial air travel.  "Proof of concept" does not mean ready for everyday use.

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 FCC opens TV band to unlicensed devices

The FCC has voted to allow unlicensed devices to use "white spaces" in the TV band for wireless broadband. Preliminarily, only devices that determine available channels based on geolocation and a database of existing users will be authorized, but procedures have been put in place to allow future approval of devices that choose available channels based on only signal-sensing.

This is a preliminary report based on listening to the discussion at the FCC meeting and review of the public notice issued by the Commission following its meeting. The actual report and order may reflect edits made after the meeting and so may not be exactly the same as this description.

Both fixed location and personal portable transmitters will be permitted. Fixed devices will be allowed to use higher power than portable devices. Portable devices must have automatic power control that reduces operating power to the minimum required to link successfully to a base station or other portable device with which it communicates.

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It always looked good on paper. Every city has dozens of TV channels sitting empty. Why not use them for something? As Wi-Fi became popular, Wi-Fi-like unlicensed operation became the application of choice for these “white space” channels – so called because they show up in white on a frequency map. Big money signed on: Microsoft, Google, Motorola, and Intel, among others. Coalitions formed. Websites launched. Herds of dark-suited lawyers roamed the halls of the FCC.

As plans for digital TV took shape, the white space idea should have lost some of its gleam. Digital channels can be packed together much more tightly than analog – enough to have freed up 18 former TV channels for other uses. That leaves a lot less white space, and a lot less spectrum for white space devices. But this is Washington, after all, where policy routinely comes unhooked from the underlying facts. The proponents of white space devices continued to press their cause with undiminished fervor.

The prospect of millions of consumer-grade transmitters on TV frequencies makes two groups very nervous. One is the broadcast industry, which fears these products will stray into occupied TV channels and cause interference to viewers. Equally concerned are users of the wireless microphones licensed to TV and motion picture producers, and sometimes used also by other groups such as churches and live music venues. These microphones have long used vacant TV channels without causing harm, but are highly susceptible to interference from white space devices.

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When you buy a car nowadays, along with the undercoating and satellite radio, the dealer often tries to sell a theft-recovery system called LoJack.  This works via a two-way data radio installed out of sight in the car.  If the owner reports the car as having stolen, the police broadcast a signal at 173.075 MHz with that car unit's serial number.  The targeted unit answers on the same frequency, telling police the vehicle's make, model and registration, and letting them home in on the source of the transmission.

More advanced models don't wait for the owner's theft report.  If the on-board system detects the car is being towed or started without a key, it sends an alarm to the LoJack headquarters, which notifies the owner that the vehicle might be in the process of being stolen.

The former rules were very limited as to permitted applications ("recovering stolen vehicles," period) and greatly restricted the duration of transmissions and how often they could occur.  Licensees also had to show they caused little or no interference to TV channel 7, which lies close to 173.075 MHz   (Although

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The FCC has announced yet another round of tests on TV "white space" mobile devices.  These products -- if they ever reach the market -- will be used for unlicensed, Wi-Fi-type communications on locally vacant TV channels.  The ongoing tests are intended to determine whether the devices can successfully avoid interfering with TV signals.

The FCC has proposed three mechanisms for avoiding occupied TV channels in a given area:

• have the unlicensed device detect and avoid TV signals;

• equip the unlicensed device with a GPS receiver and a table of occupied TV channels listed by location for automatic look-up; or

• disable the unlicensed device unless it receives a "control signal" that identifies locally vacant channels.

The FCC has spent many months on laboratory tests of devices using various combinations of these techniques.  There has been no comprehensive report of the results, although the trade press has carried stories of some spectacular failures.

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The day the D.C. Circuit decided ARRL v. FCC (the broadband-over-power-line case), I posted a brief summary of the decision.

The following is a more complete account, including background on past disagreements between the unlicensed-device industries and the amateur radio community.

---------------------------------------------

On April 25, an appeals court sent parts of the Broadband-over-Power-Line (BPL) rules back to the FCC for a second look.  The challenged rules remain in force in the meantime.

So-called Access BPL, the form at issue here, is a technology for delivering broadband, including high-speed Internet, to homes and businesses over the electrical power lines.  (Another kind, In-House BPL, distributes signals within a home or office.)  The power companies like Access BPL, not only as an additional source of revenue, but also to read customers' meters remotely and for system-related communications.

Amateurs vs. BPL

Amateur radio operators opposed BPL from the beginning.  BPL works by sending radio-frequency signals along the power lines using frequencies anywhere from 1.7 to 80 MHz.  The useful part of the signal is conducted along the lines, much as voice signals are carried along a telephone line.  But some of the BPL signal leaks off in the form of radio waves.  With access to eleven different frequency bands over 1.7-80 MHz, the amateurs are concerned about that leakage as a source of interference.

Much of the dispute in the BPL proceeding turned on how much leakage there is, and where it comes from.  The amateurs claim that every BPL power line emits energy over its entire length, thus turning a BPL-equipped city into a giant, miles-wide antenna.  The BPL companies disagree.  They say the emissions come only from specific points -- from gadgets on certain power poles -- and are not much stronger than the stray radio emissions from an ordinary PC.

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The U.S. Court of Appeals for the D.C. Circuit, responding to an appeal brought by the Amateur Radio Relay League (ARRL),  today sent parts of the Broadband-over-Power-Line (BPL) Rules back to the FCC for a second look.  The challenged rules remain in force in the meantime.

The court was unhappy with two aspects of the FCC's decision-making process.

First:  Among the many technical studies that played a part in the proceeding were five performed by the FCC itself.  The FCC placed these in the public docket, but redacted some passages that it said were "preliminary or partial results or staff opinions."  It claimed no reliance on those passages in reaching its conclusions.  But the court, having seen the redacted portions, suspected they might contain evidence that could call the rules into question.  For that reason it ordered the FCC to publish the material and to receive public comment on it.

Second, the FCC had carried over from earlier rules an "extrapolation factor" of 40 dB/decade at frequencies below 30 MHz.  (The number is used for equating measurements taken at various distances.)  The court agreed with ARRL that the mathematical models used to justify the value relied on measurements from other technologies, and further, that the FCC had failed to explain why it disregarded empirical studies in the record showing that 40 dB/decade was inappropriate.  The FCC must now either justify or change the extrapolation factor.

On two other points, the court sided with the FCC.  ARRL had argued that the FCC inadequately explained why it allowed BPL to be deployed on an unlicensed basis, notwithstanding a supposed admission that BPL could cause harmful interference to licensed mobile amateur users.  The court detected no such admission; to the contrary, it cited FCC findings that such interference would not occur.  And the court held that the FCC had adequately explained its decision not to confine BPL to 30-50 MHz, where the amateurs have no operations.

The next step in the process will be a request for comments from the FCC.  Considering that the original BPL proceeding drew 8,000 submissions, many of them strongly worded, the FCC is bracing itself for this new round, which is likely to be at least as contentious.

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Of interest mostly to manufacturers . . .

A year ago, the FCC adopted rules on "modular certification," under which it can approve a transmitter module for use in multiple host devices.  But the rules have not yet taken effect due to delays at the Office of Management and Budget.

The delays are almost over.  The FCC announced today that the rules will take effect on April 15.

Notwithstanding the late rules, modular certification has been an available option since 2000, when the FCC issued a public notice on the subject.  The new rules carry over most of the 2000 public notice intact, with two significant changes.

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Economists have always been suspicious of unlicensed radio spectrum.  The idea just shouldn't work.  Unlicensed users share the underlying resource -- spectrum -- without paying for it.  Theory says that every user will strive to maximize his own benefits by increasing his consumption until the resource as a whole is so over-burdened as to be useless.  This is the so-called "tragedy of the commons."

The fact that unlicensed spectrum functions as well as it does, notwithstanding an ever-growing body of users, must be a constant irritation to the economists.  Perhaps that is why they keep producing papers that propose economics-based regulatory schemes to avert the supposed tragedy.

The FCC released three such today, prepared by the same core group in its Office of Strategic Planning and Policy Analysis.

Two of the papers consider alternative "spectrum etiquettes" for granting access to unlicensed spectrum.  In general, a spectrum etiquette is a set of procedures through which contending users can minimize interference.  ("Listen-before-talk" and "Defer-to-emergency-traffic" are two simple examples.)  These papers propose more complex versions that take into account both the user's willingness to pay and his tolerance of incoming interference.  In some versions, each user sends out this information for an "instant auction" that determines who gets access next.  The authors claim that their models, appropriately tweaked, can double the usage of a given amount of spectrum, compared to present methods.

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Spectrum is like real estate:  they're not making any more of it.  As demand increases, congestion continues to worsen.  The people in charge -- the FCC and the National Telecommunications Information Administration (NTIA), which coordinates spectrum for the federal government -- are running through a catalog of attempted solutions.  The use of spectrum auctions is part of the process, on the thinking that somebody who pays a lot of money for bandwidth will work to get the most possible use out of it.  So are the much-delayed "refarming" rules, which require manufacturers of two-way radios to cram the same communications into ever-smaller slices of spectrum.  The switch to digital TV, although touted for improved picture and sound quality, also has the happy benefit of quadrupling the carrying capacity of each channel.

Now, trying yet another approach, the FCC and NTIA have jointly announced a "Spectrum Sharing Innovation Test-Bed" to explore ways of better sharing spectrum between federal and non-federal users.  The FCC is offering use of the 470-512 MHz band, home to TV channels 14-20 and many thousands of two-way radio users.  NTIA is putting up the nearby 410-420 MHz government band, used for law enforcement and protection of the President and other personnel, plus telemetry, paging, and a wide variety of other federal applications.

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We found a recent article concerning high tech mergers -- specifically, the proposed merger of XM and Sirius Satellite Radio -- quite interesting and wanted to share it with our blog subscribers/readers.  Below is a summary of the article by J. Gregory Sidak and Hal Singer of Criterion Economics, LLC, followed by a link to the article, which can be downloaded for free.

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The FCC announced last week, 32 months after adopting rules, that it is accepting applications for the 3650-3700 MHz band. 

All applicants receive a nationwide, non-exclusive license for the entire band, and must register their fixed and base stations in a database that is part of the FCC's ULS licensing system. Licensees planning new stations are expected to consult the database to avoid causing interference to existing stations. If interference does occur, the interferor and the victim are expected to cooperate in resolving it. 

Fixed and base stations may not be located within 150 km of 86 grandfathered earth stations without consent, or within 80 km of three federal radar facilities without successful coordination. The rules give the locations of these facilities.

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Digital devices come in thousands of types, from PCs and laptops to iPods and watches. Some, like a Wi-Fi laptop or Bluetooth earpiece, deliberately transmit radio signals to communicate with other devices nearby. But even those without built-in transmitters, like a CD player or digital alarm clock, still act as sources of radio waves. Digital circuits work by turning electric currents on and off very quickly, millions of times per second. That is all it takes to emit radio energy.

The stray radio signals from digital devices can interfere with radio communications. To minimize that risk, the FCC imposes rules on most digital devices that limit their radio-frequency emissions.

The FCC regulations establish two different sets of emission limits, according to where the equipment is intended to be used, and by whom. "Class A" limits apply to digital devices marketed exclusively for use in commercial, industrial, or business environments. "Class B" limits apply to all other kinds, including any digital product marketed to consumers or for use in a residential setting. The difference is significant. Class B maximum emissions are lower than Class A by a factor of ten.

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The FCC has asked for comment on a waiver request filed by Veroscan, Inc., which makes an RFID system for detecting surgical equipment accidentally left behind in the patient.

Veroscan wants to operate at 25 W EIRP (over the current limit of 4 W EIRP) while scanning the patient in an operating room, for periods not to exceed six minutes.

Comments are due on December 13 and reply comments on December 28.

The FCC public notice and the Veroscan request can be accessed by clicking on their respective links.

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Those who actually read these blog postings (both of you) are well informed about the controversy over unlicensed devices on vacant TV channels -- often called "white space" spectrum.

Much of the dispute centers on the wisdom of allowing handset-type units that a consumer can carry around, sometimes called personal/portable devices, that use TV frequencies. Unless these can be made smart enough to identify and avoid occupied TV channels when taken from one place to another, they will threaten interference to viewers' off-the-air reception. Designing in adequate protection is difficult because a large outdoor TV antenna can receive signals too weak for detection by a hand-held device. Proponents have yet to satisfy the FCC that non-interfering personal/portable devices are feasible.

Motorola, which hopes to make money selling the handsets, recently proposed to simplify the problem by dividing the personal/portables into two categories. The more common consumer units would use relatively simple technologies for avoiding occupied TV channels: they would monitor directly for TV signals, and also receive a local beacon signal that identifies vacant channels in the area. To minimize any residual risk of interference, these would operate only at low power, below that of typical Wi-Fi units. Higher-powered units, intended for rural areas and commercial or enterprise use, would have to add a GPS receiver and a look-up table for determining the vacant frequencies at any location. They would operate at maximum Wi-Fi power.

The broadcasters have not yet made their reaction public.

The Motorola paper is at this link.

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The FCC has allowed certification of modular transmitters since 2000, under an informal public notice. (Modular transmitters are those intended for use inside another device, such as the Wi-Fi and Bluetooth transmitters used in laptops.)

In April 2007, the FCC released a Second Report and Order that moved the modular procedures into the rules, with slight changes. (The First R&O was about something else.) Those new rules have not yet taken effect because they entail new information collection, and hence require approval by the Office of Management and Budget.

This morning, as part of the OMB approval process, the FCC published a notice in the Federal Register requesting comment on the information collection -- NOT on the substantive rules. The deadline for comment is December 24, 2007.

Circumstances vary, but we do not ordinarily advise clients to comment in response to these notices.

Because of the comment period, the new modular rules will not take effect at least until the first quarter of 2008.

In the meantime, manufacturers can continue to obtain certifications under the 2000 public notice.

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"Hey, it worked fine for us," the proponents retorted, in effect, and all but accused the FCC of breaking the device.

In the meantime, the FCC chairman announced that he hoped to issue a white space order soon. This raised consternation in an industry already on edge. If based on the current test results, such an order would presumably have to disfavor portable white space devices.

Last Friday, the FCC lab announced it would test additional devices, if people wanted to send any in. No word yet on takers, or how the additional testing would affect the FCC's decision schedule. But the lab is busy these days, and testing would probably take several weeks.

The public notice on new testing is at this link.

An unrelated development concerns fixed (non-portable) unlicensed use of the white space frequencies, long thought to be headed for easy approval. FiberTower Corporation and the Rural Telecommunications Group, Inc. have submitted a white paper urging that fixed use be licensed on an exclusive basis, either by auction or by charging fees. Their filing is at this link.

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The FCC has issued a complex rulemaking proposal on how best to auction and use the prime spectral real estate at 2155-2175 MHz. Yet even the band's availability for auction is a matter of dispute.

Background.

Frequencies at 2155-2175 MHz are home to important microwave services. An earlier proceeding to clear surrounding spectrum for Advanced Wireless Services (AWS) took in this band as well. As a result, rules now in place specify how incoming AWS licensees must move out the incumbents. But when the FCC auctioned off nearby AWS frequencies, it left 2155-2175 MHz untouched.

Enter M2Z Networks. In one of those interesting Washington coincidences, M2Z's founder and CEO turns out to be the most recent ex-chief of the FCC's Wireless Telecommunications Bureau, which administers all of the spectrum at issue here.

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Sometimes a bad idea just won't go away. Case in point: the proposal to deploy portable unlicensed devices on locally vacant TV channels. (This is often called the "white space" proposal because a spectrum map typically indicates unused frequencies in white.)

The FCC has already approved, in principle, the use of fixed unlicensed transmitters on vacant TV channels -- for example, to deliver broadband Internet to homes and businesses. This is not a bad idea, and in fact may offer an excellent way to bring broadband to areas beyond the reach of DSL and cable. An IEEE standards committee, led by one of the engineers responsible for Wi-Fi, worked out a promising scheme to ensure that fixed operations do not interfere with TV reception. Even the broadcast industry, which guards its spectrum with the greatest zeal, has approved the IEEE plan.

But for one group of companies -- Microsoft, Google, HP, Intel, Dell, Earthlink, and Philips -- fixed use is not enough. Consumers, they say, should be able to operate portable unlicensed devices on vacant TV channels. This is potentially a much greater threat to TV reception. A consumer using a portable device on channel X, in a city where that channel is vacant, might carry the device to another city where channel X is in use. If the device keeps operating on the same channel, it will interfere with TV reception at the new location. Not a problem, say Microsoft et al. -- we'll just build a unit that listens for a TV signal on channel X , and if it finds one, automatically shifts to a different channel. To prove this is possible, the companies built a prototype and sent it off to the FCC engineers for testing.

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The FCC has proposed a "spectrum etiquette" to govern unlicensed operation in the 902-928 MHz band, and possibly in the 2.4 and 5.7 GHz bands as well. If adopted, the etiquette would amount to the biggest change in unlicensed usage since the approval of high-power spread spectrum 22 years ago.

As explained below, the proposal threatens to split unlicensed users into warring camps. If adopted as proposed, the etiquette would have its worst impact on users who operate at high power all the time, primarily the wireless Internet service providers, or WISPs. The main beneficiaries would be applications whose transmissions are of very low power and/or short duration. But the vast majority of unlicensed users fall somewhere in between. They, and the manufacturers who supply them, should carefully work through the effect of the FCC's proposals on their own operations.

Comments are due on October 15, and reply comments on November 14. Companies that care about the outcome can have the most influence by setting out their positions in the first round of comments, and using the second round to challenge those who disagree.

An Etiquette -- Who Needs It?

The term "etiquette" in this context is similar to its near-synonym "protocol," as used in telecommunications. Both words refer to pre-arranged steps for setting up a communications link, although an etiquette tends to be less interactive.

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The FCC has announced a meeting on its "white space" technical reports (see email below) for 1 pm EDT this Thursday, August 16, at the FCC lab in Columbia Maryland. Available details are here.

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Those who have been vacationing off the planet for the last few weeks may not know that the FCC, in January, will auction off the TV channels no longer needed for broadcast after February 18, 2009, when the transition to digital TV will be complete. These frequencies are not only technically well suited to wireless communications, but will be completely empty at the time they are handed over. This happy combination may not occur again with such a large block of frequencies for decades to come.

Yesterday the FCC voted on rules for the auction and the subsequent management of the auctioned spectrum.

There had been intense lobbying for a large number of different positions on how the spectrum should be auctioned and used. Some parties advocated "maximizing the value of the spectrum," which largely entails letting auction winners impose the same kinds of restrictions on their subscribers that cell phone companies do today, or "promoting open competition" by giving end users more freedom to choose their own devices and applications. There were also competing models of how best to develop spectrum for public safety applications.

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Late yesterday the FCC released two technical reports bearing on its proposal to allow operation of wireless devices in locally vacant TV spectrum.

The FCC tested two prototype devices for their ability to sense and avoid occupied TV channels and wireless microphone signals. The tentative conclusion, subject to qualifications:

"[T]he sample prototype White Space Devices submitted to the Commission for initial evaluation do not consistently sense or detect TV broadcast or wireless microphone signals. Our tests also found that the transmitter in the prototype device is capable of causing interference to TV broadcasting and wireless microphones."

The complete report is available here.

The FCC also tested the susceptibility of digital TV receivers to interference from wireless devices while the receivers are connected to a cable system. The study found interference from a 6.3 dBm EIRP source at 2 meters, and a 15.3 dBm EIRP source at 10 meters.

The complete report is available here.

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 On June 25, we discussed the FCC proposal for a spectrum etiquette at 902-928 MHz.

That proposal appeared in the Federal Register this morning. Comments are due on October 15, 2007, and reply comments on November 14, 2007.

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The FCC's much anticipated vote on the new 700 MHz bandplan finally happened on July 31.  Though many of the crucial details remain to be seen, the plan as adopted gave a little bit to everyone while denying everyone all of what they wanted.  The most hotly contested feature of the plan was the designation of one spectrum block on an "open access" basis as sought by Google.  The FCC did allocate a huge 22 MHz block with this condition, also allowing combinatorial bidding on that block, which will facilitate the creation of a nationwide network.   (Open access means that any compatible device can hook onto the network without the restrictions normally imposed by the carrier which manages the network.)   Google, who it seems should have been pleased, was unhappy that the FCC did not permit operation of the band on a wholesale basis.  (Google's reaction is puzzling since the restriction on wholesaling only applies to Designated Entities - companies with low revenues - a category that Google would not fit into in any event.)

A company called Frontline had advocated allocation of a spectrum block adjacent to the block allocated to public safety.  The idea here was that the license holder on this block would partner with public safety to build out the public network in return for pre-emptible access to that block.  While adopting this concept, the FCC rejected Frontline's attempts to impose other conditions on this license or to permit wholesaling of service by Designated Entities who win the license.

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On June 1, we outlined the FCC's proposal to greatly increase power limits for outdoor unlicensed operation in the 57-64 GHz band.

The item appeared in the Federal Register this morning. Comments are due on October 17, and reply comments on November 16.

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The FCC last week dismissed without prejudice the request of  The Rail Network to use broadcast spectrum to provide audio and video information to passengers on moving trains.  The concept was to transmit over the FM spectrum (88 - 108 MHz) at relatively low power to flat TV screens in each rail car and portable FM receivers on the trains.  A waiver was needed because the power levels requested exceeded those permissible under Part 15 of the rules for unlicensed operations.  Not surprisingly, the broadcast industry objected that its own signals could be interfered with. The FCC concluded that The Rail Network had not demonstrated conclusively that its proposed signals would not create interference. The FCC did leave the door open for The Rail Network to come back again and make a stronger showing next time.

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Last Friday, the FCC requested comment on the establishment of a "spectrum etiquette" for 902-928 MHz. At the same time, it turned down two petitions for reconsideration of its 2004 rule change giving more flexibility to unlicensed operations in that band, as well as 2400-2483.5 and 5725-5850 MHz.

The 2004 changes effectively increased the power available to digitally modulated systems in the 902-928 MHz band. A licensed LMS operator that shares the band asked that implementation of the rules be postponed until after the FCC conducts and completes a study on how the changes affect LMS. A meter-reading provider asked for imposition of a spectrum etiquette for newly certified devices, including a duty cycle limitation and possibly a listen-before-talk protocol, to reduce interference in the band. The FCC denied both requests.

The FCC did, however, issue a Further Notice of Proposed Rulemaking on a spectrum etiquette for 902-928 MHz. Among the issues raised:

• whether a spectrum etiquette is needed or appropriate, noting there is presently no rule against a device occupying the entire band at 100% duty cycle, thus making it difficult for other users to gain access;
• whether the FCC should require listen-before-talk;
• whether higher-powered devices should have limitations on duty cycle; for example, a maximum duty cycle varying from 10% to 100% as power increases from 0 to 30 dBm;

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The FCC has asked for comment on a waiver request for certification of a "tank level probing radar" in the 77-81 GHz band. The device would comply with the general emissions limits in Section 15.209. The band is allocated for radio astronomy, space research, radar, and amateur use.

A waiver is necessary because 77-81 GHz falls within the "restricted bands" in which the FCC ordinarily prohibits intentional emissions from unlicensed devices. When the restricted bands were first identified, there was little activity above 38.6 GHz, so as a precaution the FCC declared everything above 38.6 GHz to be restricted. That includes this device's proposed operating frequencies.

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Today the FCC turned down most petitions for reconsideration of its novel rules in the 3650-3700 MHz band.

Background

The band is licensed on a shared, nationwide, non-exclusive basis. Licensees must register the locations of their fixed and base stations in the FCC's ULS licensing system. Licensees planning new stations are expected to consult the database to avoid causing interference to existing stations. All operations must use a "contention-based protocol," defined as one that allows multiple users to operate when two or more try to access the same channel at the same time. If interference does occur, the interferor and the victim are expected to cooperate in resolving it.

Mobile and portable units may operate only if they can receive an enabling signal from a base station. Mobile units can communicate with one another, so long as each receives an enabling signal from a base station (not necessarily the same one).

Fixed and base stations may not be located within 150 km of 86 grandfathered earth stations without consent, or within 80 km of three federal radar facilities without successful coordination. The rules give the locations of these facilities.

Reconsideration Petitions

The FCC turned down several petitions seeking conversion of all or part of the band to conventional licensing, and rejected other proposals generally aimed at giving users better interference protection. It also refused to change the emissions limits, or to increase the protection for satellite earth stations that share the band.

The FCC did, however, refine its rules on contention-based protocols. It separated those into two categories. An "unrestricted" protocol is one that prevents interference even with signals using different protocols. "Listen-before-talk" is one example. A "restricted" protocol, in contrast, works only with other devices using the same protocol -- e.g., the Wi-Max scheduling protocol. The newly amended rules confine restricted-protocol devices to the lower half of the band, while allowing unrestricted protocols to operate anywhere in the band.

The reconsideration order is at this link.

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The FCC's April 25, 2007, order on software-defined radios and cognitive radios appeared in today's Federal Register. The rules take effect on July 6, 2007.  Below is an update originally drafted by Mitchell Lazarus on April 25, 2007, discussing the order:

April 25: 2007:  An FCC order today clarified the rules that govern software-defined radios (SDRs) and cognitive radios.

In FCC-speak, an SDR is a radio whose regulated characteristics (such as frequency range, bandwidth, modulation, and maximum power) are under software control. The FCC established special procedures in 2001 for lawfully modifying SDRs through software changes. A cognitive radio is one step beyond -- an SDR that adjusts its own operating parameters by interacting with the radio-frequency environment. The FCC amended the SDR rules in 2005 to facilitate the development of cognitive radios.

Today the FCC did the following:

• clarified that an SDR must be certified under the SDR rules only if its software is designed or expected to be modified by parties other than the manufacturer; otherwise (at the manufacturer's option) can be certified as an ordinary radio;
• stated as policy that manufacturers should not make public the security software that prevents unauthorized persons from modifying an SDR;
• declined to adopt a rule requiring confidential treatment of SDR software submitted to the FCC, noting that it expects to request such submissions only infrequently;
• declined to launch a rulemaking on the separate regulation of digital-to-analog (D/A) converters, despite a party's assertions that a D/A converter with appropriate software can act like a radio transmitter; and
• clarified that the rules exempting most amateur radio transmitters from FCC certification remain unchanged, even if the transmitters incorporate SDR capability.

The FCC order is at this link.

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Today the FCC proposed to increase the power levels permitted for unlicensed point-to-point communications in the 57-64 GHz band.

The proposed limit for average power is 82 dBm (up from 40 dBm) minus 2 dB for every dB the antenna gain is below 51 dBi. Peak power limits are 3 dB higher.

Even before the proposed change, the unlicensed power limits and available bandwidths in this band are the highest anywhere in the spectrum. Yet use of the band to date has been relatively sparse. In part this is because atmospheric oxygen absorbs energy at these frequencies, so that communicating in the band is somewhat like shining a flashlight through a fog. The proposed power increase should help to make use of the band more practical.

The change in power limits applies only to transmitters located outdoors or whose beam is directed outdoors, as through a window.

Also, the FCC proposes to drop its transmitter identification requirement for indoor transmitters with outdoor-directed beams. The requirement was eliminated as to outdoor transmitters several years ago.

Comments are replies are due 90 and 120 days, respectively, after publication in the Federal Register. That should happen later this month.

The Notice of Proposed Rulemaking is at this link.

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Today the FCC granted a waiver to Multispectral Solutions, Inc. (MSSI), allowing the company to use additional peak power for tracking devices under Section 15.250, which authorizes ultra-wideband-like operation at 5925-7250 MHz.

This band is heavily used by fixed microwave operators. MSSI and the Fixed Wireless Communications Coalition successfully negotiated a set of conditions to protect microwave users, which the FCC wrote into the waiver grant.

The FCC order is at this link.

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Four years ago, the FCC floated the concept of "interference temperature" as a way to have unlicensed transmitters share licensed bands without causing harmful interference. Rather than merely regulate transmitter power at fixed levels, as in the past, the scheme would have governed transmitter power on a variable basis calculated to limit the energy at victim receivers, where interference actually occurs.

The plan had a great many variables and unknowns.

A less ambitious proposal for the short term would have tried out a much-simplified form of the idea in two bands used by the fixed microwave service. Groups that use those bands, including the Fixed Wireless Communications Coalition, vigorously opposed.

The FCC has now agreed the whole idea was short on merit to begin with, and has dropped all forms of the proposal.

The order is at this link.

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In 2003 the FCC considered imposing standards on receivers to ensure they could reject certain kinds and amounts of interference, thus allowing the spectrum to be used more densely.

The idea never attracted much support. Today the FCC today abandoned it. With a very few minor exceptions (such as radar detectors and UHF TV tuners), receiver performance remains unregulated.

The order is at this link.

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Since 2000, the FCC has permitted "modular certification," under which it approves a transmitter module for use in multiple host devices. That option originated with a unilateral public notice from the FCC, rather than a rulemaking in which the public participated.

Today the FCC released a "Second Report and Order" that codifies and extends the 2000 public notice. (The First Report and Order in this docket made other changes to the Part 15 rules without addressing modular certification.)

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An FCC order today clarified the rules that govern software-defined radios (SDRs) and cognitive radios.

In FCC-speak, an SDR is a radio whose regulated characteristics (such as frequency range, bandwidth, modulation, and maximum power) are under software control. The FCC established special procedures in 2001 for lawfully modifying SDRs through software changes. A cognitive radio is one step beyond -- an SDR that adjusts its own operating parameters by interacting with the radio-frequency environment. The FCC amended the SDR rules in 2005 to facilitate the development of cognitive radios.

Today the FCC did the following:

• clarified that an SDR must be certified under the SDR rules only if its software is designed or expected to be modified by parties other than the manufacturer; otherwise (at the manufacturer's option) can be certified as an ordinary radio;
• stated as policy that manufacturers should not make public the security software that prevents unauthorized persons from modifying an SDR (which seems obvious to us);
• declined to adopt a rule requiring confidential treatment of SDR software submitted to the FCC, noting that it expects to request such submissions only infrequently;
• declined to launch a rulemaking on the separate regulation of digital-to-analog (D/A) converters, despite a party's assertions that a D/A converter with appropriate software can act like a radio transmitter; and
• clarified that the rules exempting most amateur radio transmitters from FCC certification remain unchanged, even if the transmitters incorporate SDR capability.

The FCC order may be found at this link.

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