A month ago we reported on a Notice of Proposed Rulemaking (NPRM) through which the Commission is looking to impose greater consistency in its regulatory treatment of a range of wireless services. Those services have heretofore been subject to varying different regulatory approaches – without much apparent disruption or confusion among regulatees. The NPRM has now been published in the Federal Register, which in turn establishes the deadlines for comments and reply comments. If you want to submit comments, you have until August 6, 2010; reply comments are due by August 23.
NPRM proposes uniform provisions for renewal, cancellation, partitioning, disaggregation.
When the FCC first opened its doors, back in 1935, there were just two kinds of radio service: AM broadcast and maritime. That made for simple regulations. But the inventors stayed busy over the ensuing years, and the FCC kept busy, too. As each new kind of radio service appeared, the FCC added a new section to its rules. The services and the rule sections each now number well up into the dozens.
Most of the licensing rules address common issues: who is eligible; how to apply; duration of the license term; when construction must be complete and/or service offered; renewal requirements; and so on. But the details on these items vary from one radio service to another.
Such differences do not seem to cause a lot of trouble. Most companies with FCC licenses have only one or two kinds. Either they know the applicable rules, or they have an advisor or supplier who does. When people get on the wrong side of the FCC, it is rarely for confusing one section of the rules with another.
Even so, the FCC thinks more uniform rules might promote efficient spectrum use, give certainty to licensees, encourage investment, and facilitate planning. Defying Ralph Waldo Emerson, it has now proposed imposing greater consistency in the rules on renewal requirements, discontinuation of service, and licensees’ obligations following partitioning and disaggregation across a wide range of wireless services.
The FCC proposes a general prohibition on competitive renewal applications in the wireless services, on the stated ground that such applications trigger needless litigation and invite abuse of FCC procedures. Under the proposed approach, where the renewing licensee has not met its obligations, its spectrum would revert to the FCC for re-auction.
Renewal of geographic-area licenses would require a “renewal showing” demonstrating levels of service and record of expansion, among other things. Affected services include:
- 1.4 GHz Service;
- 1.6 GHz Service;
- 24 GHz Service;
- 39 GHz Service;
- 218-219 MHz Service (formerly IVDS);
- 220-222 MHz Service;
- 700 MHz Guard Band Service;
- 800/900 MHz Specialized Mobile Radio Service;
- Advanced Wireless Service;
- Air-Ground Radiotelephone Service (Commercial Aviation);
- Broadband & Narrowband Personal Communications Services;
- Cellular Radiotelephone Service;
- Dedicated Short Range Communications Service;
- Local Multipoint Distribution Service;
- Multichannel Video Distribution and Data Service;
- Multilateration Location and Monitoring Service;
- Multiple Address Systems (EAs);
- Personal Communications Service;
- Paging and Radiotelephone Service;
- Public Coast Stations, including AMTS; and
- Wireless Communications Service.
Renewal of most site-based licenses, in contrast, would need only a certification of prior compliance with the license requirements and the FCC’s rules and policies. The services that use these licenses are:
- 220-222 MHz Service (site-based);
- 800/900 MHz (SMR and Business and Industrial Land Transportation Pool);
- Air-Ground Radiotelephone Service (General Aviation);
- Broadcast Auxiliary Service;
- Common Carrier Fixed Point-to-Point Microwave Service;
- Digital Electronic Message Service;
- Industrial/Business Radio Pool;
- Local Television Transmission Service;
- Multiple Address Systems (site-based), excluding public safety licenses;
- Non-Multilateration Location and Monitoring Service;
- Offshore Radiotelephone Service;
- Paging and Radiotelephone Service (site-based);
- Private Carrier Paging;
- Private Operational Fixed Point-to-Point Microwave Service (excluding public safety licenses); and
- Rural Radiotelephone Service (including BETRS).
The FCC also seeks comment on whether the above lists are the right ones.
The following services, which are authorized by rule or on a “personal” basis, would be excluded from the new requirements:
- Citizens Band Radio Service;
- Dedicated Short Range Communications Service (OBUs at 5850-5925 MHz);
- Family Radio Service;
- Low Power Radio Service;
- Medical Device Radiocommunication Service;
- Multi-Use Radio Service;
- Personal Locator Beacons;
- Radio Control Radio Service;
- Wireless Medical Telemetry Service
- 70-80-90 GHz Service
- Aeronautical Advisory Stations (Unicoms);
- Aeronautical Enroute and Aeronautical Fixed Stations;
- Aeronautical Multicom Stations;
- Aeronautical Search and Rescue Stations;
- Aeronautical Utility Mobile Stations;
- Aircraft Stations;
- Airport Control Tower Stations;
- Alaska Fixed Stations;
- Amateur Radio Service;
- Automatic Weather Stations;
- Aviation Support Stations;
- Commercial Radio Operator License Program;
- Flight Test Stations;
- General Mobile Radio Service;
- Maritime Support Stations;
- Part 80 Operational Fixed Stations;
- Private Coast Stations and Marine Utility Stations;
- Radiodetermination Service Stations;
- Ship Stations; and
- Wireless Broadband Services in the 3650–3700 MHz Band.
Also excluded, as a logical necessity, would be all uses of unlicensed devices, including Wi-Fi, Bluetooth, ZigBee, and hundreds more.
Most FCC licensing rules have a use-it-or-lose-it provision, under which the license cancels automatically if service is “permanently discontinued". But the meaning of that last phrase varies among the various services. Some (Parts 24, 27, and 80) have no real definition. Others specify 90 days (Part 22) or one year (most Part 90). Part 101 (fixed microwave) licensees are subject to both a 30-day rule for equipment removal and a one-year rule for permanent discontinuance.
The FCC proposes to adopt a uniform 180-day rule for Parts 22, 24, 27, 80, 95, and 101; and a 365-day rule for Part 90 (except SMR, which would fall under the 180-day rule). It asks for comment on these time periods, and for help in defining “discontinuance.” Other questions turn on when the new requirements would take effect. One option, for example, is to trigger application of the new rule on the date of the first construction showing.
Geographic Partitioning and Spectrum Disaggregation
The FCC generally permits a geographic licensee to partition a license (i.e., divide it geographically) or to disaggregate the spectrum (i.e., split the licensed frequencies among two or more parties). But after partitioning or disaggregation occurs, who is responsible for meeting the FCC’s requirements for station construction?
The current rules are all over the map. Various services allow the parties to satisfy their construction obligations independently, to assign obligations among themselves, or to satisfy their respective obligations collectively. Some rules look just to the original licensee. There has been (prepare to be shocked) some abuse. In some services, for example, a licensee can assign a tiny sliver of spectrum to an affiliate, and also assign the construction obligation to the affiliate. When the affiliate fails to construct, the FCC takes back that little bit of spectrum. The original licensee, having built nothing, still gets to keep its license for the bulk of the spectrum.
The FCC proposes to clean this up by sticking each of the parties, after partitioning or disaggregating, with its own construction obligations for its spectrum and geographic area, and would carry over the deadlines from the original license. Inflexible application of this rule could make such “after-market” acquisition of spectrum decidedly less attractive than it is now.
The deadlines for comments on the Commission's proposals have not yet been set. Check back here for updates.