Congress Contemplates Cohabitation at 5.85-5.925 GHz

Bill would set timetable for unlicensed operation, deferred by FCC in April.

The crack electrical engineers and spectrum policy experts elected to the U.S. Congress are considering a bill called the Wi-Fi Innovation Act.

Readers may recall that the FCC proposed to add rules for Unlicensed National Information Infrastructure (U-NII) operation on 5.85-5.925 GHz at one watt output power. (U-NII overlaps with Wi-Fi and serves many of the same purposes.) The proposed use would share spectrum with “Dedicated Short Range Communications” (DSRC), authorized in 2004 for automatic communications among vehicles and between vehicles and roadside points, to facilitate safety and the movement of traffic. Although interest in DSRC remains high among vehicle manufacturers, widespread deployment does not appear imminent.

Some who support DSRC opposed the new U-NII rules in the 5.85-5.925 GHz band, fearing interference. The FCC’s First Report and Order in the proceeding did not resolve the issue, deferring action on it pending the completion of ongoing technical analyses.

If enacted, the Wi-Fi Innovation Act would take over the FCC’s deliberations. The FCC would have to: (a) consider “interference mitigation techniques and technologies” that would enable the proposed U-NII service at 5.85-5.925 GHz while protecting DSRC; (b) conduct tests of those technologies, and (c) adopt U-NII rules (or not) based on the outcome of those tests – all within two years.

In addition to imposing particular deadlines for FCC action, the bill would require actual interference testing. Parties to a proceeding often submit test results, and the FCC has sometimes done its own testing (in the TV white space proceeding, for example), but this is not part of the FCC’s usual routine.

An earlier version of the bill, from U-NII advocates in Silicon Valley, would have required the FCC to adopt U-NII rules even over DSRC objections. Then the DSRC folks stepped in. Their efforts led to the current version with required interference testing – a process that may take longer than would the FCC’s own processes, without congressional help.

The bill has the bipartisan support of some key members of Congress. But the present Congress, which will hold office until after the elections in November, has advanced very little legislation, and its upcoming calendar will be shortened by the election campaigns. There may be hearings on the bill in the fall, but prompt action beyond that is unlikely.

Users of 5.8 GHz unlicensed spectrum – you know who you are – may wish to keep an eye on the bill, as its passage could affect the availability of additional adjacent spectrum at relatively high power.

5 GHz Reply Date Extended

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

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

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

Update: Comment Deadlines Set in U-NII 5 GHz Rulemaking

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

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

FCC Proposes to Simplify and Expand Unlicensed 5 GHz Use

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

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

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

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

Updating Rules on the Present Bands

Unlicensed operations in the frequency range 5.15-5.825 today are governed by four sets of technical rules. Three are collected under the heading of “Unlicensed National Information Infrastructure Devices,” or U-NII, detailed in Section 15.407 in the FCC rulebook. The fourth comes under the “digital modulation” rule, in Section 15.247. Here is the breakdown:

Below 5.725 GHz, the U-NII rules are the only choice. The power limits are relatively low, and the need to avoid certain airport weather radars adds complication. The region above 5.725 GHz is popular because it offers the highest power for Wi-Fi standards a and n (and also the proposed standard ac). The band is a favorite of wireless Internet service providers, or WISPs, which offer Internet service via a roof antenna, mostly in regions not served by either broadband cable or telephone.

Before 2003, most manufacturers working above 5.725 GHz opted for the U-NII standards, which have no express limit on data speed, because Section 15.247 then limited speeds to about 11 megabits/second. But a rule change that year eliminated the limit in Section 15.247, and thus put the two sections on an equal footing for speed. Today Section 15.247 is the favorite because in fixed point-to-point applications it allows more focused antennas with no penalty in transmitter power, offers 125 MHz of bandwidth versus 100 MHz for U-NII, allows more power per megahertz, and has more relaxed limits for out-of-band emissions.

The FCC now proposes to harmonize the two rule sections. In some respects it suggests changing the U-NII provisions to match those in Section 15.247: namely, extending the upper bound on U-NII-3 by 25 MHz, to 5.85 GHz, and allowing the same power-per-megahertz as Section 15.247. In other respects, however, the harmonized rules would follow the U-NII provisions: a power penalty in fixed point-to-point applications for antenna gains above 23 dBi, and the more stringent U-NII limits on unwanted emissions.

A separate proposed harmonization would amend the rules for U-NII-1 at 5.15-5.25 GHz to more closely match those for U-NII-2 at 5.25-5.35 GHz in three respects: raise the power limit from 50 mW to 250 mW; raise the power-per-megahertz to match U-NII-2; and drop the limitation to indoor-only operation. As an alternative, also up for discussion, is raising the U-NII-1 power limits to U-NII-3 levels (1 watt), and again allowing outdoor operation. Neither proposal would require DFS or TPC in the U-NII-1 band.

The NPRM revisits the stubborn problem of U-NII-2 devices causing interference to airport weather radars operating at 5.6-5.65 GHz. Dynamic frequency selection (DFS) capability is required in the U-NII-2A and U-NII-2C bands specifically to protect those radars: the U-NII device must “listen” for the presence of a radar signal and, if found, move to a different frequency. Interference has persisted nonetheless, some from illegally operated U-NII devices that may lack DFS, but also from fully compliant systems.

Some interference to radars comes from users unlawfully changing the frequency of a certified device. This can result in a transmitter possibly overpowered for its band, with no DFS, operating on the same frequency as the radars. The FCC has found that some U-NII transmitters are easily modified in this respect. It proposes to require security safeguards to prevent such reprogramming, and/or the transmission of ID information to help locate offending units. It also asks for comment on these additional measures:

  • built-in geolocation capability in combination with database registration and access, so that units within a certain distance of a radar will automatically avoid its frequencies;
  • tighter limits on unwanted emissions to reduce interference from U-NII transmitters operating close by a radar frequency;
  • improved sensing capability; and
  • changes to certification test procedures to better assess sensing capability.

(Note to manufacturers and test labs: The above is only a rough summary. Please consult the proposed rules and measurement procedures in NPRM at pp. 39-45.)

Expanding into New Bands

As shown in the table above, the FCC is considering an expansion into 195 MHz of new U-NII spectrum. It hopes to find 120 MHz in the tentatively-named U-NII-2B band at 5.37-5.47 GHz, and another 95 MHz in the U-NII-4 band at 5.85-5.925 GHz. This would yield an unbroken sweep of 775 MHz, albeit subject to differing technical rules in the various sub-bands.

The problem, of course, is that both of the proposed new bands are occupied. The 5.37-5.47 GHz U-NII-2B band houses military and other government radars, weather radars (some used by broadcasters), NASA systems, unmanned aircraft, satellite observations of the planet, and border surveillance. At 5.85-5.925 GHz, U-NII-4, are more military and other government radars, automatic communications with and between vehicles, and a secondary amateur band.

U-NII, being an unlicensed service, will be required to protect licensed services, i.e., all of the above. We expect it will be a challenge to accomplish adequate protection to the satisfaction of the federal government (not to mention the amateur radio folks) while leaving enough technical elbow room for U-NII to be useful.

As a starting point for discussion, the FCC proposes:

  • U-NII-2B to operate under the same rules as the adjoining bands, U-NII-2A and U-NII-2C, providing 475 MHz of contiguous and consistently regulated spectrum; and
  • U-NII-4 to operate under the same rules as U-NII-3, with the same rules also applying to the 25 MHz in between. This would provide another 200 MHz that is contiguous and consistently regulated, at somewhat higher power.

The FCC seeks comment on whether DFS and TPC requirements should apply to U-NII-2B and U-NII-4, and if so, what the technical characteristics should be.

Manufacturers of future devices and present users of the proposed expansion bands should pay close attention. Reading between the lines, we have the sense that the FCC is tired of tinkering with these rules. The outcome of the proceeding may set the technical provisions for many years to come.

Comments and reply comments will be due 45 days and 75 days, respectively, after publication in the Federal Register. Watch this space (or subscribe) and we will let you know when that happens.

With Raft of Threshold Questions, FCC Starts Take-Back Process for 470-512 MHz

Statute requires the band to be cleared of public safety users by 2021 and auctioned by 2023.

In most parts of the country, the frequency band 470-512 MHz, also called the “T-band,” is better known as TV channels 14-20. But 11 major metropolitan areas use parts of the band for public safety communications, like the two-way radios in police cars, ambulances, and fire vehicles. These users include some of the nation’s biggest first responders, such as the Los Angeles County Sheriff’s Department and the New York City Police Department.  Other licensees also use the band for two-way communications.

Last year, as part of the Middle Class Tax Relief Act (most of which has little to do with middle class tax relief), Congress gave public safety entities access to additional spectrum in the 700 MHz band for a nationwide first responder broadband network. But it also required that public safety licensees give back spectrum they use in the T-band, which would then be auctioned for commercial services. Public safety users would have to vacate the T-band by 2021 for a spectrum auction by 2023. The auction revenue is supposed to be made available to current public safety licensees to help offset the cost of relocating their systems to other frequencies.  Oddly, the statute is silent as to the non-public safety users of T-band.

There has been talk among public safety licensees of asking Congress to repeal the T-band “give back” provisions. Unless and until such a repeal occurs, though, the FCC has its marching orders. In keeping with those orders, the FCC has released a public notice to investigate the implications of the law for public safety and other land mobile radio licensees. The public notice seeks detailed information on the extent and nature of public safety radio systems in the T-band, whether some of the current users can migrate to the new first responder broadband network or other public safety frequency bands, and the potential costs of such a relocation.

Comments in response to the public notice are due on May 13, 2013, with reply comments due on
June 11.

FCC and GAO Back Current Licensing for Fixed Microwave

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

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

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

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

Both agencies have now issued their reports.

The FCC very politely told Congress it had asked the wrong questions. Users in these bands are licensed on a link-by-link basis. A would-be applicant must successfully complete frequency coordination, establishing that the proposed link will neither cause nor receive interference, before it submits an application to the FCC. So by the time an application for this spectrum arrives at the FCC, it will already have passed the no-interference test at the coordination stage, said the FCC.  This means the FCC's “rejection rate” for applications is necessarily zero. But even rejections by frequency coordinators are extremely rare, if they happen at all; the FCC estimated their occurrence at “well under one percent.” The FCC does not know how many of those are common carrier applications, it said, because frequency coordinators typically don’t know if a given application is for common carrier or private use.

The FCC noted that its current procedures allow for heavy re-use of frequencies in areas where demand is high, resulting in highly efficient use of the spectrum.

Much of the GAO report deals with basics of radio-frequency communications, licensing, and frequency coordination. Of course these matters are second nature to the FCC, although perhaps new to GAO (and possibly new to Congress as well).   GAO went on to concur with the FCC that rejections due to frequency congestion are rare. Doing its best with Congress’s query on auctions, GAO struggled at length over the difficulties of auctioning spectrum that already has many thousands of users in place. It considered whether imposing “spectrum fees” instead might provide suitable incentives. But in the end, GAO found the FCC’s current approach in fact has encouraged spectrum efficiency. GAO concluded there is no clear need for either auctions or spectrum fees.

We think both agencies reached the right result. The FCC’s licensing and coordination procedures for fixed microwave services have evolved over many decades in response to the technical and economic realities of an industry that forms an essential part of the U.S. telecommunications infrastructure. The procedures are working well. We hope Congress gets the message and leaves them alone.

(Disclosure: FH&H represents the Fixed Wireless Communications Coalition, which provided substantial input to both the FCC and GAO in the preparation of their respective reports.)

Inside the Incentive Auction NPRM (Part 1): The Overall Auction Design

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

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

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

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

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

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

Of course, the design phase of the Incentive Auctions is necessarily complex because of the extraordinary complexity of the ultimate goal. That goal includes encouraging as many TV and Class A licensees as possible to surrender their spectrum for repurposing in the most efficient manner possible while what’s left of the TV industry is repacked into less spectrum. And then there’s also the goal of reconfiguring the freed-up spectrum and selling it to wireless providers. The NPRM provides all interested parties an opportunity to attempt to shape the auctions’ final design.

With that in mind, we present the first of a series of posts summarizing various elements of the NPRM. Our series will not address all of the NPRM. Rather, we will attempt to highlight aspects that appear to us to be particularly prominent and worthy of consideration by folks likely to be affected by the process. Comments in response to the NPRM are currently set to be filed by December 21, 2012; reply comments are due by February 19, 2013. We encourage all parties interested in the Incentive Auction program to take a careful look at the NPRM and weigh in with their thoughts.

Auction Design Overview – A chicken-and-egg problem, on steroids, in three dimensions

The Incentive Auction process will include two separate-but-interrelated auctions: a “reverse” auction in which TV and Class A licensees will agree to relinquish some or all of their spectrum rights in return for cash, and a “forward” auction, in which prospective mobile licensees will bid for the right to use portions of the spectrum freed up by the “reverse” auction. 

Sounds simple, but wait. 

The precise spectrum to be bid on in the “forward” auction won’t be known until the “reverse” auction is completed. And Congress has mandated that the proceeds from the “forward” auction must cover all the payments to successful “reverse” auction bidders, plus a number of other administrative and reimbursement costs.  So there’s a threshold interdependence between the two that poses conceptual problems (sort of a regulatory equivalent to M.C. Escher’s Drawing Hands).

But that chicken-and-egg problem is further complicated by the fact that the value of any particular broadcaster’s to-be-relinquished spectrum is likely to be different from any other broadcaster’s. The differences arise from a host of factors, some of them easily calculable (e.g., population covered, perhaps whether any particular relinquishment would create “white” or “gray” areas), some not so much (e.g., extent to which that particular spectrum will facilitate (a) repacking of the TV band and/or (b) repurposing of the spectrum). And, of course, the value of the spectrum available in the “forward” auction will depend on how much spectrum is available and where it can be used.

With respect to determining the value of to-be-relinquished TV spectrum, the FCC is considering a couple of computer programs that might serve to update the likely value of each participant’s to-be-relinquished TV spectrum constantly through the course of the “reverse” auction. Remember, while participating broadcasters will want to keep that value up, it’s in the Commission’s interest to keep it down, so as to minimize the overall pay-out (and, thus, maximize the government’s ultimate take from the “forward” auction).

One of the two computerized approaches under consideration (the “Integer Programming Algorithm Approach”) “would, for a specified amount of spectrum to be cleared, minimize the sum of the reverse auction bids accepted and the relocation costs of stations that are reassigned to new channels.” But that particular approach would not necessarily lead to “optimal” results – although the Commission advises that results would be “within a certain tolerance of optimality” that the Commission, at least, could find acceptable. Oh yeah, and those results might not be easily reproducible and, thus, “less than fully transparent”.

The second computerized approach – the “Sequential Algorithm Approach” – would, as best we can understand it, assess for each auction participant prior to each auction round the feasibility of assigning that participant’s station to some channel in its pre-auction band. As long as the station can be assigned to the pre-auction band, the participant can opt to continue in the “reverse” auction. (Alternatively, of course, it could bail from the auction at any time as well – but heads up: a decision to exit the auction would be irreversible.) The program would determine for each participant the “least-cost” move (“least-cost”, that is, to the Commission). If no re-assignment within the participant’s pre-auction band is possible, then that participant’s compensation would be set at the last price offer it accepted for its last preferred relinquishment option. This approach may be more easily replicated than the Integer Programming Algorithm, but it’s apparently more complicated and less efficient.

As far as operation of the “reverse” auction goes, the Commission is looking at two alternatives: either (a) a single round, one-and-done, put-your-final-bid-forward approach, or (b) a somewhat more conventional multiple round clock format.  In the latter, in each round a progressively lower bid amount would be presented by the Commission and each bidder would indicate its willingness to accept that amount. It appears that each FCC-set bid would be unique to each auction participant (based on the particular attributes of that participant’s to-be-relinquished spectrum) and disclosed confidentially only to that participant. The idea is not to have broadcasters bidding against each other, but rather to enable the FCC and each broadcaster to arrive at a mutually agreeable cash value for the relinquishment of that broadcaster’s spectrum.

Another interesting point: the Commission is considering establishing “reserve” prices, i.e., a maximum that it would be willing to pay for the relinquishment of spectrum rights. The maximum would likely vary from broadcaster to broadcaster, depending on the relevant characteristics (e.g., audience served) of the broadcaster’s station.

The “forward” auction would be considerably simpler, but still not without its quirks. The Commission is tentatively planning on using a standard multiple round ascending auction typical of other spectrum auctions. Bidders would be bidding on “generic” categories of licenses (e.g., paired or unpaired) in particular geographic areas, probably in 5 MHz blocks. Specific frequencies would not be involved; those would be assigned once the “forward” and “reverse” auctions have been completed and the repacking process has permitted the identification of specific frequencies available in specific areas. We’ll be posting a separate installment addressing in more detail “forward” auction issues.

For those readers who find the NPRM’s description of the auction process a bit too daunting, you may be better off by starting with the “Incentive Auction Rules Option and Discussion” included as Appendix C to the NPRM.   Prepared at the FCC’s request by Auctionomics and Power Auctions, it provides a somewhat more accessible view of what the FCC has in mind. It’s still not quite “FCC Incentive Auctions for Dummies”, but we found it helpful.

Even those who are not interested in participating in the auction may want to take the opportunity to comment.  Whether or not they choose to participate, all TV broadcasters will be affected by the Incentive Auction.  That’s because, in order to package more desirable spectrum blocks for the “forward” auction, the FCC will likely be forcing most, if not all, remaining full power broadcasters to change channels or implement other modifications.  While the Commission is required to take “all reasonable efforts” to protect full-power stations’ existing service areas, and to reimburse relocations costs (to be paid from the forward auction proceeds), the mechanics and implementation of the repacking are, not surprisingly, rather complicated.  For low power television licensees, the situation is much worse, as their services will not be entitled to any protection during the repacking process.

Obviously, there remain plenty of questions relative to all auction mechanics. Comments on any and all such questions are invited in the NPRM. Again, comments are currently due to be filed by December 21, 2012 and reply comments by February 19, 2013.

[UPDATE: As we have separately reported, on November 29 the Commission extended the comment and reply comment deadlines to January 25, 2013 and March 12, 2013, respectively.]

Congress Wants to Hear from the FCC, Which Wants to Hear from You

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

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

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

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

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

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

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

But even that generous re-phrasing still poses problems.  The answer to the re-phrased question probably is also zero, or close to it. That’s because, in our experience, frequency coordinators usually find a way to meet their customers’ needs. Plus, if in fact coordinators have received requests they could not fulfill, they may not be able to tell the FCC much about them, since nothing requires coordinators to keep records of those (or any) customer requests. And if the coordinators do have records of rejected applications, they are unlikely to know which ones were intended to become common carrier applications. And even if they had all those data (which we doubt), the frequency coordinators may not want to disclose them via a public docket, in a competitive environment.

Comments in response to the public notice are due on July 20, 2012. There is no provision for reply comments. In a rare move, the FCC will allow parties to submit information without also posting it in the docket. But be careful: information sent to the FCC remains subject to disclosure under the Freedom of Information Act, unless it qualifies for confidential treatment and the submitter makes a proper and timely request for FOIA non-disclosure.

Multiline Telephone Systems and 911 Caller Location - Room for Improvement?

At Congress’s direction, FCC explores feasibility of more precise caller-location capability for 911 calls from MLTSs.

When you make an emergency call to 911, it’s helpful – and often crucial – for the person on the receiving end to be able to figure out where the call is coming from, particularly if you the caller can’t speak or aren’t familiar with your surroundings.  The receiving operator, stationed at a Public Safety Answering Point (PSAP), generally sees both the number from which the incoming call is made and the address associated with that number in a database available to the PSAP.  This occurs through the magic of Automatic Number Identification, similar to the Caller ID system with which we’re all familiar.  Even cellphones must report their location to the PSAP, meeting FCC-prescribed accuracy standards.

But if the 911 call is made from a phone system that operates through multiple extensions (including Centrex, VoIP, PBX, hybrid, and key systems) – systems referred to as Multi-Line Telephone Systems (MLTSs) – the magic may not work.  MLTSs, used by businesses and institutions, usually use shared outgoing trunks that may not even have a conventional phone number and are tied only to the location of the central phone system and not the location of the calling extension.  So when a 911 call comes in from an MLTS, the PSAP must hope that the caller can report his/her location and callback number.  Without input from the caller, the PSAP operator may know only the general location of the business or institution, but not the particular room, floor, or even building from which the call is coming.

It doesn’t do a lot of good to send an ambulance to a university campus if you don’t know where on the campus to look for the patient.

This is not a new problem.  Historically, the Commission has been inclined to buck the MLTS  problem to state and local governments, which the FCC felt to be “in a better position to devise rules for their jurisdictions”.  But Congress had different ideas.

As part of the sweeping Middle Class Tax Relief and Job Creation Act signed into law in February, Congress enacted the Next Generation 911 Advancement Act of 2012.  That provision directed the FCC to take a look at the feasibility of requiring MLTS manufacturers to include

within all [MLTS] systems manufactured or sold after a date certain, to be determined by the Commission, one or more mechanisms to provide a sufficiently precise indication of a 9-1-1 caller’s location, while avoiding the imposition of undue burdens on MLTS manufacturers, providers, and operators.

The new law also required the FCC to seek comment on model legislation drafted by the National Emergency Number Association (NENA).  (The full title of that model legislation is “Technical Requirements Document On Model Legislation E9-1-1 for Multiline Telephone Systems.”)

The FCC has dutifully responded with a public notice requesting comment on both the questions posed by Congress.

So far, the inquiry as framed by Congress in the Act and the FCC in its public notice is directed exclusively to newly manufactured MLTSs.  There is no suggestion that existing systems should be retrofitted.  Nevertheless, large businesses and institutions using MLTSs – universities providing phone service to dormitories spread out across a wide campus, as an example – should probably consider how to react if the FCC were to adopt regulations, even if those regs are prospective-only.  The adoption of such standards may encourage such entities to accelerate the replacement of their MLTSs.  Why?  To avoid any possible negligence claim if a person somewhere on the premises of the business or institution were to call 911 but not be locatable in time by first responders because of the technical shortcomings of the older MLTS

The FCC has set deadlines for responses to the public notice: July 5, 2012 for comments, August 6, 2012 for replies.

Dead Men File No KidVid Reports

Tales from the crypt: Video Division reaches into grave to yank Class A tickets

 We have previously written about the Commission’s apparent quest to move as many Class A television stations back into the LPTV category as possible.  Presumably this quest is motivated by the Commission’s seemingly all-consuming urge to free up as much TV spectrum as possible for “repurposing”. 

That urge has now driven the Commission’s Video Division to reach into the grave to take a couple of Class A authorizations back from a dead guy. (The two orders may be found here and here.)

The case involves two Class A – er, one-time Class A, at least as of today – stations in Texas licensed to a gentleman named Humberto Lopez. Back in March, 2011, when the stations were both still card-carrying members of the Class A Universe, the Video Division asked how come Mr. Lopez apparently hadn’t filed children’s TV reports (FCC Form 398) for 2006, 2007, 2008, 2009 and 2010. Commission records revealed no such reports, so the reasonable assumption was that no such reports had been filed – but the March, 2011 inquiries were designed to give Mr. Lopez the chance to set things straight.

Wouldn’t you know it, Mr. Lopez died in May, 2011, within a month or two of the FCC’s inquiries. It’s hard to respond to FCC questions where you’re, um, dead.

The Commission followed up its March, 2011 inquiries with more inquiries in August, 2011. By then, of course, Mr. Lopez was long gone, although, in fairness, the Commission may not have been aware of the licensee’s unfortunate demise at that point.

But the Commission was for sure aware of his demise by November, 2011, when the executor of gone-but-not-forgotten Mr. Lopez’s estate filed an application (FCC Form 316) for consent to the assignment of the license to the executor. Such applications are standard operating procedure; they are routinely granted in a matter of days.

Not so in this case. According to CDBS, that 316 is still pending, more than five months after it was filed.

Of course, until that application is granted, Mr. Lopez technically remains the licensee, and his executor (who is not the licensee) is technically not in a position to respond to inquiries directed to the licensee.

So what does the Video Division do? Knowing that the licensee is dead, and knowing also that the licensee’s executor is not in a position to formally respond to Commission inquiries addressed to the licensee, the Video Division issued show cause orders to Mr. Lopez in February, 2012. Those orders proposed to reclassify the two Class A stations to LPTV status. 

To no one’s great surprise, Mr. Lopez, being dead and all, did not respond to those orders.

And now the Division has held that, because of his lack of response, the Division will “deem him to have accepted the modification of [his licenses] to low power television status”.

We understand that the Commission is on what it perceives to be a desperate quest for TV spectrum. And we get that Class A stations that no longer qualify for Class A status may look like low-hanging fruit in that quest. But really, is the Commission so desperate that it has to engage in grave-robbing?  Since Mr. Lopez had been dead for nearly a year by the time the Division issued its show cause orders, isn’t it more than a little inappropriate for the FCC to draw any conclusions from his failure to respond to those orders?

It may be true that the late Mr. Lopez failed to file KidVid reports. But that doesn’t necessarily mean that he didn’t air the programming or place appropriate reports in his public files. Wouldn’t it be at least fair (not to mention decent) to grant the Form 316 application and then accord the new licensee a reasonable time to investigate the situation and respond accordingly? 

In the alternative, shouldn’t the Commission try to check – maybe with a Ouija board – exactly what the licensee meant by not responding?

More Steps Toward TV Band Clearing

Sixteen more Class A stations face the loss of their Class A status.

The thinning of the ranks of Class A TV stations continues.  We reported recently that the FCC has started to propose the downgrading of a number of Class A television stations to LPTV status, presumably to make room for the almighty broadband to take over TV spectrum.  The stations targeted in the first round of that effort had (a) failed to file Children’s TV Reports and (b) failed to respond to FCC’s inquiries about the whereabouts of those reports.  (The Commission later fined a number of other stations which had also failed to file kidvid reports; they escaped the dreaded downgrading because they had at least responded to the FCC’s inquiries.)

Another 16 Class A’s now face the prospect of being demoted to LPTV status. 

Like the stations we’ve already reported on, the latest batch of targeted Class A’s got onto the FCC’s radar by not filing Children’s TV Reports.  In response to the FCC inquiry about those missing reports, each of the three licensees (one holding 13 licenses, another two, and a third one) acknowledged their respective failures to file.  Each also acknowledged that their stations had operated, at most, only sporadically over the last several years.  Two blamed the economy for the extended darkness; one claimed that its non-operation – its two stations had operated a total of less than four months in the last five years – arose from a “need to locate permanent transmitter sites”.   Two of the three licensees’ responses also indicated that their stations no longer had main studios (much less public files located their main studios).

In order to qualify for Class A status, a licensee must maintain a main studio and broadcast a minimum of 18 hours per day, with an average of at least three hours weekly of locally-produced programming and three hours of children’s programming.   From the responses described above, the Commission concluded that none of the 16 stations still qualified to be Class A – accordingly, they’re looking to be downgraded.

The FCC suggests that Class A stations who find themselves temporarily unable to meet the minimum regulatory requirements for Class A status may, in some circumstances, be eligible for special temporary authority to operate at variance from those requirements.  But such STA would be only temporary, and would not cover extended time periods of noncompliance, particularly when the reason for the STA is financial distress.  The Commission is particularly skeptical about stations that close their main studios and/or de-construct their transmission facilities. The result of this strict approach, of course, is to impose the greatest hardship on the most vulnerable. 

The other side of the argument is that no one is proposing to take away licenses; rather, all that’s involved here is a status downgrade (from Class A to LPTV), which still allows the stations to resume operation.  Whether there is a difference between taking away the license and taking away only Class A status remains to be seen after we know more about the prospects of space remaining for LPTV stations after implementation of the FCC’s plan to truncate the TV spectrum by 10-20 channels.

Missing KidVid Reports Lead to $13K Fines for Class A Stations

FCC is an equal opportunity whacker when it comes to doling out fines.

Last month we posted about the FCC’s apparent effort to thin the ranks of Class A stations, presumably to free up spectrum for broadband.  The targets there were 16 Class A licensees who had not filed all their Children’s TV Reports (FCC Form 398) and who did not respond to the FCC’s letters of inquiry about that failure.  As we suggested then, it wasn’t clear how the Commission planned to deal with Class A licensees who hadn’t filed the required reports but who had responded to the FCC’s inquiries by demonstrating that they had in fact (a) aired kids’ programming and (b) followed up by filing appropriate (albeit late) reports.

Now we know.

It looks like the price tag is going to be $13,000 (per station, not per licensee).  In each of three Notices of Apparent Liability, the Media Bureau has fined the targeted licensee $3,000 for failure to file reports and $10,000 for not having the reports in the public file.  One of the licensees in question has two stations – so it got hit for a total of $26,000.  You can read the FCC’s Notices here, here and here.

The amount of the fines does not appear to vary according to the number of Children’s TV Reports that may have been missed.  One targeted licensee missed 17 reports, another 16, another eight – but they all got the same fine on a per station basis. 

Perhaps more importantly, the amount of the fines does not vary according to the size of the licensee.  An individual licensee holding only three Class A/LPTV stations is treated the same as a large corporate licensee with a score of full power stations.  While little guys can try to get their fines reduced by pleading poverty, the FCC has historically been unwilling to reduce any fine that does not exceed about 5%-7% of the station’s gross revenue, without regard to profitability.  We know of one instance where the FCC’s disinclination to consider the practical economic hardship its fines impose directly resulted in a station’s having to lay off employees to fund the payment. 

The government’s need for revenue marches forward.  And you thought that the FCC’s agenda was about job creation….

First Steps Toward TV Band Clearing Start

Commission moves to downgrade primary Class A stations to more vulnerable secondary LPTV status.

With the spectrum auction legislation now in effect, the FCC is turning to the task of clearing TV spectrum for wireless broadband.  As we all know, that will involve some shuffling, since full power and Class A television stations have rights as primary spectrum licensees and must therefore be accommodated somewhere on the band. 

But the auction legislation specifically recites that it does not change the status of Low Power Television stations,which presumably continues their secondary status. That gives the Commission a lot more flexibility in dealing with LPTVs because it does not have to take LPTVs into account when it plays chess with full power and Class A channel assignments.  While LPTVs will likely be given an opportunity to find, and file for, some alternate channel, they may need good luck to find one in the anticipated cramped condition of the post-repurposing TV band.

So, from the Commission’s perspective, the chore of repacking existing stations would probably be much easier if Class A stations could be downgraded to LPTV status.

Where there’s a will, there’s a way: the downgrading effort has begun.

Last year, the FCC started checking its own files to see whether Class A stations had been filing their quarterly Children’s TV Reports (FCC Form 398).  Licensees who hadn’t filed their reports received inquiry letters from the Commission in March, 2011. Follow-up inquiries to licensees who didn’t respond to the March letter were sent in August.  Now the FCC has proposed to revoke the Class A status of 16 stations that neither responded to the FCC letters nor filed their Children’s TV Reports. (Here’s a link to one of the 16 “Orders to Show Cause” issued; the other 15 are essentially identical to this one.)  If the threatened downgrades are implemented, the stations won’t be shut down, but will be downgraded to LPTV status. That may or may not end up as a one-way ticket to the gallows in light of the fact, noted above, that a downgrade to LPTV status could ultimately cause the LPTV to become a station without a channel as a result of the spectrum repurposing effort.

At least some Class A stations who received the Commission’s inquiries did respond and did bring their Children’s TV Reports up to date. As far as we know, involuntary downgrades have not as yet been proposed in any of those situations, but the 16 stations singled out so far may just be the beginning of a larger band-clearing initiative by the Commission.

Experienced FCC licensees know that it is never a good idea to ignore an inquiry from the agency.  And of course, failure to file required reports is inviting trouble.  Class A stations should be careful to do their paperwork within 10 days after the end of each quarter: 

  1. File a Children’s TV Report on Form 398 on the FCC’s website, with a paper copy in the station’s public file. 
  2. Place a list of significant community issues and responsive programs in the public file.
  3. Place in the public file records sufficient to demonstrate compliance with limits on commercial matter in children’s programs.  

Class A stations must also place in their public file sufficient documentation to demonstrate compliance with the requirement that they broadcast 18 hours a day (including at least three hours of locally produced programming per week), although there is no specific requirement to renew this documentation every calendar quarter.

Class A licensees derive important regulatory benefits from their status – the additional measure of protection accorded them in the spectrum auction law may be the most important such benefit. It is only a matter of common sense that routine steps – including regular filing of required reports – should be taken diligently to protect those benefits.

Update: Incentive Auction Act Signed Into Law

It’s official! The White House website indicates that President Obama signed the Middle Class Tax Relief and Job Creation Act of 2012 into law on February 22. That clears the way for the FCC to start crafting – and then implementing – the elaborate incentive auction process intended to free up spectrum (including TV spectrum) for mobile broadband. As we previously indicated, this is likely to be a long and complicated process – but at least now (and for the immediate future) the game will be played out primarily in a single venue, i.e., the FCC. No more having to keep one eye on the Commission and the other on Congress to see who was doing what spectrum repurposing-wise at any given moment.

And heads up, all you states and localities – the requirement that you green-light non-substantial changes to wireless towers and base stations is now in effect, too.

Congress Requires State/Local Rubber Stamp Approval of Some Wireless Tower Modifications

Payroll tax cut extension law gives modest relief to wireless tower industry; Congress to localities: States’ rights? What states’ rights?  

In a little noticed section of the landmark Middle Class Tax Relief and Job Creation Act, Congress has thrown the wireless industry – or, more specifically, the folks who build towers for the wireless industry – a small measure of relief in the on-going struggle to get tower modifications approved and constructed. Buried in a collection of odds and ends dumped, seemingly as afterthoughts, at the end of the law, Section 6409 requires state and local governments to approve modifications of wireless towers and base stations as long as those modifications don’t substantially change the dimensions of the existing structures.

The wireless industry has long complained that local authorities hold up approval of new tower construction either out of either misplaced concern for interference issues or simply as a revenue-generating mechanism. That problem has increasingly spread to tower modifications as well.

The streamlining of needed approvals is a big inducement to licensees to collocate on existing structures, saving considerable time and money in getting a station up and operating. Most federal rules properly treat minor modifications of existing structures as non-events that require little or nothing in the way of prior approvals. Local authorities, by contrast, have come to see such collocation applications as an additional opportunity to interpose themselves into the process, usually not to the financial or operational benefit of the carriers.

Congress moved to correct this abuse. In Section 6409 it simply pre-empts states and local authorities from being able to deny eligible facilities requests, i.e., requests involving:

  • the collocation of new transmission equipment;
  • the removal of transmission equipment; or
  • the replacement of transmission equipment.  

Once the President signs the act into law, these seemingly innocuous alterations of existing structures will be safe from state and local meddling.  (The law does leave all applicable environmental rules with respect to such towers in effect.)

At least two questions remain.

First, the legislative history is largely silent as to any basis for the law’s pre-emptive action.   Normally, Congress is reluctant to pre-empt traditional local prerogatives without having built a strong rationale for the action. Since zoning laws have traditionally fallen within the province of cities and counties, Congress appears to be taking a large step into murky, and potentially dangerous, jurisdictional waters.  

Second, this section of the Act applies to “wireless towers and base stations”. Neither term is defined here or anywhere else in the Communications Act. Do “wireless towers” include broadcast towers, which of course transmit their content wirelessly?  If so, this would add a large set of towers to the protected mix. Some broadcast towers, of course, simultaneously serve, or can serve, as towers for wireless communications carriers. The legislative history suggests that Congress had in mind “cellular towers” when it referred to “wireless towers”, but the law itself includes no such limitation. The scriptural exegesis of this point will no doubt put many a lawyer’s offspring through private school in the years ahead.

Section 6409 also extends another apparent helping hand to the tower industry. It provides that agencies of the Federal government “may” grant an easement or right-of-way to applicants seeking to install wireless service antenna structures on Federal property. While the thought here was nice, the absence of a mandate to permit the easement (i.e., the critical use of “may” rather than “shall”) pretty much leaves such things where they were: in the hands of sometimes quixotic bureaucrats. 

The law recognizes that a maze of different Federal agencies have been imposing a farrago of widely varying tower siting application requirements on hapless applicants.   To rationalize the process, Congress has now mandated the development of a single government-wide form for siting applications and a standard contract for facilities sited on Federal property.  This seemingly small step could simplify enormously the process of securing rights to construct towers on Federal properties. 

These modest measures, together with the recent upholding of the FCC’s “shot clock” rules, should put at least a small smile on the faces of tower constructors.

Congress Opens Door for Spectrum Repurposing, Incentive Auctions

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

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

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

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

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

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

Also of note:

  • Stations that agree to forego reimbursement for relocation costs may make flexible use of their spectrum, including non-broadcast uses, as long as they continue one free television program stream. It isn’t clear how such flexible modulation schemes can be implemented consistent with maintaining one free TV program stream, unless the free stream need not be in ATSC format – that presumably is among the details the FCC will have to sort out. Note that the act speaks only of such flexible use as an alternative to relocation reimbursement costs; it says nothing about such use either by stations that do not relocate and thus can’t claim relocation costs, or by LPTV stations that are not entitled to reimbursement under the act. Whether flexible spectrum use by all TV broadcasters will be a possibility remains to be seen.
  • Stations that agree to share a channel retain their current cable carriage rights.
  • No stations may be permitted to move from VHF to UHF unless they filed a request by May 31, 2011, so most VHF DTV stations will remain in VHF.
  • Stations’ rights to protest license modification under this bill, otherwise available under Section 316 of the Communications Act, are suspended.
  • Nothing in the bill is intended to “prevent” the FCC from implementing "white space" rules, but nothing requires "white space" rules either.  The new law does provide for unlicensed use in the 5350-5470 MHz  band, but only if (a) it is determined that licensed users will be "protected by technical solutions", and (b) the "primary mission" of federal spectrum users in that band won't be "compromised". An NTIA study of the impact of unlicensed use in the 5.4 and 5.9 GHz ranges will be conducted. Also, unlicensed use will be permitted in “guard bands [that] shall be no larger than is technically reasonable.” What the FCC determines is “technically reasonable” will be interesting to assess come implementation of this section.
  • Public safety operators using TV Channels 14-20 in the top 10 markets will have to give those frequencies back after 11 years.
  • No mention is made of the 1755-1780 MHz band, the portion of the spectrum now occupied by government users and among the most coveted by prospective mobile broadband operators.

One major question left unanswered is precisely how much money is likely to be paid to any TV licensee opting to make its spectrum available for repurposing. 

At least three different repurposing scenarios are possible. A TV licensee could simply turn in its spectrum, essentially bowing out of the over-the-air TV business. Or it could agree to move to a different channel. Or it could choose to buddy-up with another licensee, sharing a common channel. To determine what the pay-out will be, the Commission will have to conduct a “reverse auction” in which any licensee interested in repurposing may “submit bids stating the amount it would accept for voluntarily relinquishing some or all of its broadcast television spectrum usage rights”. 

Meanwhile, the Commission will also conduct a “forward auction” to sell off the spectrum made available by the repurposing. The proceeds from that auction will provide the pot from which payments will be made; the amount to be paid to participants will be based on the results of the reverse auction, although it’s not clear from the act how much of any participant’s reverse auction bid will be paid out to that participant. To avoid potential embarrassment, the reverse auction may not be held unless there are at least two participants; additionally, the pay-out to TV broadcasters may not exceed the proceeds of the forward auction.

So while the outlines of the auction processes have been set in very general terms, there remain a ton of nitty-gritty details that will have to be resolved before any of this becomes reality.

On the non-broadcast side, Congress decided the FCC may not exclude participants from the “forward auction”, which means that the Big Guys (i.e., AT&T and Verizon) will be permitted to bid. However, the FCC may implement policies to promote competition, presumably authorizing limits on spectrum holdings (either nationally or on an individual market basis) by any one entity. This reflects the outcome of a battle between those (mostly Democrats) who sought to provide the FCC latitude in formulating auction rules and others (mostly Republicans) who were less sanguine about the impact of such policy leeway for the Commission.

In addition to authorizing the voluntary auctions, the act reallocates the 700 MHz D-block to public safety and creates a Public Safety Trust Fund of up to $7 billion to construct a national public safety network. While this comes more than a decade after the September 11 attacks, this is a case of better late than never. The new network will be managed by a First Responder Network Authority, created within the National Telecommunications and Information Administration – a compromise arrangement that was not specifically proposed by any interested party.

So after much anticipation, incentive auctions have now been authorized – but what does it all mean? 

The FCC now must develop the rules for the auction. With the number of practical loose ends left unresolved in the act, that poses a major chore for the Commission. And once that’s done, we’ll have to see who among the broadcasters actually chooses to participate. Then who will bid? Time will tell. And time is a key consideration: estimates range from four, to five, to six years, possibly, before any actual availability of spectrum. Indeed, the bill recognizes how long all this will take: under the act, auction proceeds are not required to be deposited into the Treasury until 2022.

Beyond those administrative questions, there are others. What are the chances that efforts will be made to challenge one or more aspects of the auction process in court? For example, what if broadcasters find, after the repacking has been completed, that the FCC did not make “all reasonable efforts” to preserve their coverage area and populations?  Or will LPTV players seek judicial remedies for the likely loss of much of their spectrum? 

Time, again, will tell.

[Blogmeister note: Peter Tannenwald and Robert Gurss contributed to this post.]