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

The Commission’s ruling is expressly limited to uses by governmental entities, leaving issues involving private utilities for a later day.  And as to Charlotte’s overall request – i.e., that any use by a governmental entity be deemed to meet the act’s requirements – the Commission said “no”: both the identity of the user and the nature of the use are required elements to qualify under with Section 337(f)(1) of the Communications Act. Under that section, “public safety services” are services: (a) whose sole or principal purpose is to protect safety of life and property and (b) that are provided by state or local government entities or by nongovernmental organizations authorized by a government agency whose primary mission is the provision of public safety services. In addition, services provided on public safety spectrum must not be commercially available to the public by the provider. So while being a governmental entity gets you part of the way there, you still have to demonstrate that the use to which the spectrum would be put by that entity qualifies as well.

And just what uses will qualify? The Commission did not provide a definitive, comprehensive list, but it did provide a number of examples. Those examples demonstrate that eligibility will not be limited to police and fire departments – to the contrary, it appears that the Commission plans to be liberal in identifying uses that will qualify as public safety services. The Commission expressly acknowledged that agencies such as housing and transportation authorities, and even animal control and water works, can have significant public safety functions. So while not all governmental uses will qualify, it seems clear that many will.

To qualify for use of the new public safety frequencies, the communications traffic must be public safety-oriented.  Radio traffic relating to day-to-day operations will not necessarily qualify.  On the other hand, public safety functions are not limited to emergency situations and may involve routine functions. The point is that the radio call must relate to public safety and not something else. Unless and until the Commission chooses to provide a detailed list of “approved” uses, governmental entities may end up having to request specific guidance with respect to particular uses which the Commission has not already addressed.

Is this all crystal clear to you now? Probably not, but the FCC was not trying to cover all the possibilities in its ruling.  Its intent was to be more “inclusive” than not and to provide a structure for future interpretation of the statute.  Meanwhile, public safety agencies looking to deploy new technology, while maximizing efficiency and drawing funding from as many sources as possible, now have an idea of the direction in which the FCC is heading.

Having selected LTE, the Commission also committed (in the notice of proposed rulemaking portion of its ordre) to examine a host of broadband interoperability issues, including:

• the architectural vision of the network;
• the effectiveness of open standards;
• interconnectivity between networks;
• network robustness and resiliency;
• security and encryption;
• coverage and coverage reliability requirements;
• roaming and priority access between public safety broadband networks; and
• interference coordination and protection.

For those who would like more detail about the FCC’s R&O/NPRM but who aren’t inclined to wade through all 58 pages of the item and its attachments, the FCC has posted a 13-minute video summarizing it all.

The R&O/NPRM is only the most recent step in the FCC’s on-going effort to foster the goal of a fully interoperable network for emergency responders. Last April, for example, it established an Emergency Response and Interoperability Center (ERIC) within its Public Safety & Homeland Security Bureau to focus on broadband interoperability and related issues. It also recently appointed an advisory committee to ERIC, consisting of public safety and industry representatives.

The big open question, of course, is where in the radio spectrum the public safety broadband network will operate. Currently, there is 12 MHz of spectrum allocated for public safety broadband in the 700 MHz band, and some entities have received authority to initiate local deployment plans. However, it’s not clear that 12 MHz is sufficient for an effective broadband network.   National public safety groups and other parties have been lobbying Congress to reallocate another 12 MHz in the adjacent 700 MHz “D Block” for public safety broadband. The Obama Administration recently indicated its support for such a reallocation. Passage of the necessary legislation, however, remains in doubt as some parties continue to push for a D Block auction.

The bottom line: starting when the new rules are published in the Federal Register (likely within the next few weeks), wireless microphones and other low power auxiliary devices on Channels 52-69 may no longer be imported, manufactured, sold, or leased in the United States. Use of any such devices now in operation must cease by June 12, 2010, with no exceptions. They must clear out earlier on 60-days notice from a 700 MHz operator who plans to start operations, and immediately if they cause actual interference at any time.

None of this is a surprise.   The FCC has been saying for over a decade that Channels 52-69 must be vacated. But it has waited unto now, six months after the DTV transition, to take definitive action.

The widespread use of non-licensed microphones puts the FCC in a bit of a predicament. The Commission would take far too much heat if it started confiscating unauthorized devices and shutting down Broadway and Sunday Mass, to say nothing of your kid’s school play. Rather than investigate and prosecute ineligible users, the FCC decided instead to find a way for everyone to get most of what they want. 

For now, both old and new users who are currently ineligible for licenses may nonetheless operate legally on an unlicensed basis, at up to 50 milliwatts power, until the FCC decides on permanent rules. In the “Notice of Proposed Rulemaking” portion of its document, the Commission has invited comments on who should be eligible for licenses in the future, how licensed and unlicensed operation should be permitted, and what technical standards should apply.   The FCC must figure out power limits, whether new units must be digital to minimize interference potential, which TV channels should be available, and the interference implications to and from “white space” devices, including the details of database registration for wireless microphones. The rules are likely to forbid data transmission, interconnection with the telephone network, wireless telephone headsets, and after-market RF amplifiers. (Comments on these questions will be due 30 days after the order is published in the Federal Register; reply comments will be due 51 days after Fed Reg publication.)

And enough, says the FCC, of selling wireless microphones to customers who do not understand the license requirements. Effective February 28, 2010, conspicuous disclosure will be required throughout the distribution chain – on websites, in catalogs, in displays, and even on the boxes in which microphones are sold – to warn buyers about which frequencies are legal and who needs a license.  (See the required disclosure language here.) The FCC is even considering making customers sign an acknowledgment that they understand the rules (which might work as well as their requirement, given up some decades back, that make everyone with a CB radio get a license).

Retailers must pull 700 MHz-capable units off their shelves immediately.  Those units may now be manufactured only for export, and starting April 15, 2010 (the Office of Management and Budget willing, that is), must be labeled in all cases with a clear advisory that the units cannot be used in the U.S.  Manufacturers are encouraged to continue trade-in and rebate programs that replace noncompliant devices and are expected to notify users who have filed warranty registrations.

Current licenses that authorize 700 MHz band operation will automatically be modified to delete those frequencies effective June 12, 2010, but will remain valid for lower frequencies. A few licenses which are for only the 700 MHz band will be void. 

So your clergy will not be forced to shout from the pulpit, Broadway will not shut down, and rock bands will still split your ears, thanks to a better organized and more realistic regulatory scheme. And the FCC can keep on using the wireless microphones in its meeting room.

Read the Order here.

 To its credit, the FCC recognized that its plan had been seriously flawed.   Rather than proceeding with a new auction last summer as originally planned, the FCC opted to go back to the drawing board on the whole thing. After soliciting an original round of comments, it has now proffered yet another Further Notice of Proposed Rulemaking, a 212- page tome that revisits virtually every aspect of the D Block scheme. The result, on which comment is sought on a much abbreviated 30 day schedule, tentatively retains a good deal of the original plan but also proposes some novel new approaches to issuing the licenses. Here are a few of the highlights:

• The Public Private Partnership concept is maintained, but with changes. . The two entities must work together closely on the deployment plan, equipment, sharing protocols, and virtually every other element of sharing a huge nationwide telecommunications network but with radically different incentives and perspectives. Like a marriage counselor always on call, the FCC proposes to hover about resolving arguments and smoothing over differences as they arise. Testing such a novel mode of operation in a system critical to public safety on a nationwide scale using perhaps the most desirable spectrum likely to be available for decades to come is a risky proposition indeed, but the FCC seems committed to going forward.
• To be sure, the FCC has tried to eliminate from the equation some of the uncertainties which doomed the first auction by clarifying the rights and responsibilities of the public safety licensee (PSL) vis a vis the commercial licensee (CL): a Draft Network Sharing Agreement has been prepared which contains the "baseline" elements which the FCC expects the CL and PSL to agree on. The CL will only be liable for a default payment after the auction if it fails to reach agreement with the PSL on the remaining issues and the FCC deems the CL's position to be unreasonable. This still entails some risk to the CL since the default penalty will be between 3% and 20% of the amount bid. The Commission also clarified under what circumstances the PSL would have access to the CL's commercial spectrum, how much spectrum the PSL would be entitled to, and the circumstances in which such priority access would have to be offered. These proposals eliminate a number of the most contentious issues which previously were left open to negotiation.
  
• The FCC provided much clearer guidance on the governing structure of the PSL and its relationship with outside advisors --something which had been a subject of much discord in the first go-round. It also clarified eligible users of the public safety network, allowable fees, and funding possibilities.
  
• The FCC proposed a unique method of auctioning the D Block in which the spectrum will be awarded either on a single-licensee nationwide basis or a multiple-licensee regional basis depending on the auction results. If a nationwide licensee is selected, the 4G protocol is unrestricted, but if multiple licensees are selected, the operating protocol must be either Wi-Max or LTE depending on who bids the most for the licenses overall. This interesting proposal somewhat follows the proposal by NTCH, Inc. to let the governing protocol of the national D Block system be set by auction bidders who essentially "vote" with their dollars. Theproposal makes for an auction with many moving parts and innumerable permutations, but also conceivably has the effect of letting the market decide which configuration for the D block makes the most sense. At the same time, a single, consistent protocol will be established whether the licensee is nationwide or regional. The "regions" for this purpose are "Public Safety Regions" -- the 55 areas (plus three others) into which the US is divided for purposes of public safety planning. The Commission also clarified that the CL and PSL will both have access to the full 20 MHz of spectrum but their rights of priority usage to amounts of the spectrum will be set by the final order. Fifty percent of the capacity of the combined public safety/D Block network is subject to unrestricted public safety use and available for commercial use only on a secondary, preemptible basis. Public safety access to additional capacity on the network would be very limited and subject to narrowly defined “emergency” situations.
  
• The FCC revised its proposed build-out rules. The original rules called for strict build-out of substantial portion of the geographic area of the license within 4 years. Under the new proposal, the license term has been extended to 15 years, with construction benchmarks at the 4th, 10th and 15th years. (40% of the population of each Public Safety Region by the 4th year, 75% by the 10th year, and 90-95% by the15th year, depending on the population density of the Public Safety Region involved. The build-out obligation is therefore not only considerably spread out but also is less restrictive in terms of picking up the miniscule population pockets necessary to achieve 99% coverage.
  
• The FCC significantly lowered the minimum price from $1.33 billion to $750 million.
  
•  The FCC retained the elimination of the prohibition on "impermissible material relationships" between the auction winner and other parties. This means that auction winners who are Designated Entities may freely resell or lease portions of the spectrum to others without the usual restrictions.

The FCC clearly listened to the industry in devising a new structure for the D Block. All parties at the table, including the public safety community, recognized that the Public Private Partnership could not work unless the structure made commercial sense. The resulting proposal does make the spectrum more attractive by significantly clarifying the rights and obligations of the CL, reducing the minimum payment, easing the build-out burdens, and making the spectrum available to regional entities. Whether the complex and untested structure proposed here can work in the real world is something we will have to wait to find out. Comments may be filed on or before November 3.

While the Commission has made crystal clear for years that full-service broadcast service would be removed from the 700 MHz band as of the DTV Transition date, the Commission has not previously been as clear about low power auxiliary operations that have also been permitted in that band. The FCC now says that everyone engaging in such operations should have (and may have) figured out their days were numbered, but it does not appear that the FCC has previously taken a position, directly or otherwise, on the subject.

Whether or not the FCC’s silence to date has been the result of conscious planning or inadvertent oversight, the agency has now snapped into action with a vengeance. As a result, effective August 21 the Commission will not accept or grant applications for further licenses for low power services in the 700 MHz band, nor will it process any requests for equipment authorization which would involve such services.

Looking ahead, the Commission has proposed to modify all outstanding low power 700 MHz licenses to specify that, to the extent that those licenses permit operation in the 700 MHz band, they will expire as of February 17, 2009. According to the Commission, a wide range of alternate frequencies are available for use for such services, so roping off that particular band should have only “minimal impact” on such operations.

The Commission has also proposed a blanket prohibition against the marketing of any devices that operate as low power auxiliary stations in the 700 MHz band. That would include the manufacture, import, sale, offer for sale or shipment of such devices. The prohibition would take effect as soon as the proposal is adopted. Since this proceeding appears to be on a fast track, it’s possible that the prohibition could be in effect before the end of the year.

Besides the upcoming DTV Transition deadline, a major impetus for the FCC’s sudden concern about low power 700 MHz operation was pressure from the “Public Interest Spectrum Coalition” (PISC), which filed a complaint against a number of wireless microphone manufacturers and a petition proposing, among other things, the creation of a “General Wireless Microphone Service” to utilize, on a secondary basis, vacant UHF channels below Channel 52. The Commission has requested comments on all of the PISC proposals. The context of that request, however, suggests that it is largely pro forma in nature, and that the Commission’s real interest lies with the proposals, described above, which the agency specifically addresses elsewhere in its order.

The FCC’s decision does not address precisely how the agency would enforce a blanket prohibition against everyone who currently owns and operates a 700 MHz wireless mike. Many such mikes are used by organizations – churches, theaters, corporate event venues, among many others – who presumably are not especially au courant about the technical details of their gear, much less the FCC’s pronouncements. If the FCC thinks that it can wave its magic rulemaking wand and make all low power 700 MHz operation vanish in the blink of an eye, it probably has at least one more think coming.

The deadline for comments on the FCC’s (and PISC’s) proposals has not yet been established. Check back here for updates.