FCC Declines To Clarify Enigmatic Interference Rules

Posted on February 25, 2011 by Mitchell Lazarus

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

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

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

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

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

An incumbent licensee in Puerto Rico complained of interference from a newcomer. The incumbent accused the newcomer of failing to check the database before firing up its transmitters, failing to coordinate, and operating before its transmitters showed up in the database (making it hard for the incumbent to find the cause of interference). Once the source had been identified, said the incumbent, the newcomer failed to cooperate in clearing it up.

In most licensed bands, the newcomer would be at fault. The rules for 3650-3700 MHz do say that applicants and licensees “shall cooperate in the selection and use of frequencies” so as to minimize interference. But when it comes to specifics, the tone of the rules changes. Incoming users “should” consult the database, and “should” try to avoid causing interference. When interference does occur, all users “are expected to” cooperate in resolving it. “Thou should,” in other words, rather than “Thou shalt.”

The 2009 Bureau decision on the Puerto Rico incident found for the newcomer. The rules, it said, do not give the incumbent any priority in the interference food chain.

The incumbent sought review by the full Commission, restating the arguments it had raised before the Bureau. It also proposed that the rules, properly read, require the newcomer to reach out to the incumbent before filing its application, so the two can cooperate in devising a plan for coexistence.

The Commission has now firmly rejected that view. It reiterates that all parties have equal status in the 3650-3700 MHz band, regardless of their sequence of arrival. Moreover, the cooperation the FCC requires in selection and use of frequencies need not entail the parties actually working together. Here, it found, certain actions by the newcomer (installing directional antennas), although unilateral and apparently unsuccessful, constituted all the cooperation required. The order did note that if either party causes interference to the other, they must act in good faith to help eliminate it. But it offered nothing in the way of particulars.

In principle, the all-in-it-together attitude has considerable appeal. But things happen; interference occurs; someone must spend money or suspend service to fix it. When a choice is available, there is a natural human tendency to point fingers rather than write checks. The Fixed Wireless Communications Coalition (a client of FHH) has asked the FCC to at least drop the “should” terminology and make compliance mandatory. It would also help if the FCC were to clarify what compliance consists of.
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FCC Interprets Novel Licensing Scheme

Posted on December 23, 2009 by Mitchell Lazarus

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.

Licensee Neptuno Networks complained that another licensee, World Data, had failed to check the database before turning on its transmitters, failed to coordinate with Neptuno, and caused harmful interference to Neptuno. Moreover, said Neptuno, World Data began operating before its transmitters showed up in the database, thus making it hard for Neptuno to track down the source of interference.  Neptuno expressed its displeasure in an enforcement complaint about the premature operation, and also filed two Petitions to Deny against World Data’s efforts to register its stations. One of those asks the FCC to bar all World Data operations in the band within six miles of a registered Neptuno base station.

World Data largely admitted the relevant facts (while blaming its contractor), but argued the FCC should leave it alone anyway.

In a decision that may surprise those accustomed to the more traditional licensing regimes – in which causing harmful interference to an earlier-licensed station draws a strong rebuke at the very least – the FCC here pretty much sided with World Data.

Most significantly, the FCC rejected Neptuno’s contention of entitlement to protection from interference because it was there first. In the same vein, the FCC rejected Neptuno’s argument that World Data was required to coordinate its operations with Neptuno. Rather, the FCC insists that every user has equal responsibilities regardless of their sequence of arrival in the band. “[T]he licensing scheme imposes on all licensees the mutual obligation to cooperate and avoid harmful interference to one another.” The FCC found that World Data had met its obligation in that regard by choosing a modulation that could synchronize with Neptuno’s, installing directional antennas, and using a polarization opposite from Neptuno’s.

On the charge of premature operation, the FCC noted it had earlier issued a Notice of Violation against World Data, and did not see any reason to doubt the company would comply in the future. A possibly sarcastic footnote reminds Neptuno that the FCC had previously extended a similar courtesy to Neptuno.

Procedural buffs may be interested in the FCC’s ruling on the applicability of a Petition to Deny. The Communications Act allows any party in interest to file a Petition to Deny against a common carrier application. This could include some 3650-3700 MHz applications. But the FCC reads this provision as applying only to the application for the initial non-exclusive nationwide license, not to the database registration of a particular site. Challenges to a registration, says the FCC, are within its discretion. While it chose to consider Neptuno’s petition in this case, it did not have to.

Read the FCC’s order here.
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