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

In response, LightSquared offered to avoid the upper 10 MHz for now, and to operate in the lower 10 MHz at lower power than originally planned. The FCC asked for certain additional testing. But neither LightSquared’s proposals nor the additional tests – which LightSquared alleged were biased – alleviated the interference concerns.

Then, last December, the skilled electrical engineers who make up the U.S. Congress intervened, forbidding the FCC from authorizing LightSquared until the FCC has “resolved concerns of potential widespread harmful interference” into GPS equipment.

Here in Washington, if you can’t solve a problem quickly, the automatic next step is to blame the problem on somebody else. Predictably, the finger-pointing has begun. The GPS people moved first: back in June, they asked the FCC to rule that the GPS community is not required to share any responsibility for protecting GPS receivers from LightSquared.

Now LightSquared has countered with its own request for an FCC ruling: that commercially available GPS devices have no protection from LightSquared’s interference.

A question there in the back? Ten MHz is a lot of spectrum, you say, equal to half of the entire FM band. So if LightSquared stays at least 10 MHz away from GPS frequencies, how can it still cause interference to GPS?

Good question. The answer lies in receiver design. It is possible to build a receiver that picks up just the frequencies it is meant to, and is relatively insensitive to other frequencies nearby. LightSquared has submitted evidence that such interference-resistant GPS receivers are feasible. But for consumer gear, where price competition is steep, manufacturers opt for less expensive designs that, unfortunately, respond to a range of frequencies around the ones they are meant to receive. An inexpensive consumer GPS receiver, such as those used in cars and cell phones, thus can experience interference from a strong signal even several MHz away. (To limit this kind of problem, the FCC once considered setting minimum standards for receivers, but after four years of struggle gave up on the idea.)

GPS units for critical applications, such as those used for landing commercial aircraft, are relatively better at ignoring unwanted signals. We all want the pilot of our plane to receive a strong, clear GPS signal, not somebody’s streaming of a silly cat video. But even as to these units, considering the possibly catastrophic downside of interference, the GPS industry remains wary of LightSquared.

The arguments on both sides have merit. In LightSquared’s favor is a long history of regulation that requires a potential interferor only to stay within its own frequency band and power limits, nothing more. We can’t recall another case that penalized Party A for Party B’s poor receivers. But the GPS industry can also point to long-standing principles of spectrum management: a newcomer must deal with the spectrum as he finds it; and everybody has an obligation to protect safety-of-life applications.

Both sides, moreover, have political clout. You might say politics has no place in a primarily technical controversy; but again, this is Washington. LightSquared can cite the importance of fostering U.S. technological innovation, and of delivering high-speed broadband to where it is needed – issues the FCC Chairman has publicly espoused. Behind the GPS industry, on the other hand, are the public’s fears that our in-car gadgets will stop working, and more urgently, that aviation and military GPS applications may be compromised.

One key party has not yet made its views public: the small, inconspicuous outfit called the U.S. federal government. It has a considerable stake in the outcome. For one thing, the federal government launches, owns, and operates the GPS satellites. For another, its military and aviation departments, among others, have strong interests in making sure GPS operations stay reliable. The government spectrum users, including those who rely on GPS, have a back channel to the FCC that can bypass the public record. If they have not yet conveyed their views to the FCC, they doubtless will. And unless the government is satisfied that LightSquared is harmless to its GPS operations, we very much doubt that LightSquared will get the nod it wants from the FCC.

In the meantime, the FCC is accepting input from the rest of us on LightSquared's request to deny interference protection to GPS.  Comments are due on February 27, and reply comments on March 13.

analyzing a variety of types of GPS devices for their susceptibility to overload interference from LightSquared’s terrestrial network of base stations, identifying near-term technical and operational measures that can be implemented to reduce the risk of overload interference to GPS devices, and providing recommendations on steps that can be taken going forward to permit broadband wireless services to be provided in the LBand MSS frequencies and coexist with GPS devices

LightSquared’s participation in the working group was not entirely voluntary: as a condition of its waiver, LightSquared was required to “help organize and fully participate” in the group.

The working group submitted its report to the Commission a couple of weeks ago. The Commission, in turn, has now requested public comment on the report’s findings and on some “recommendations” advanced by LightSquared in response to those findings.

The report is lengthy – 318 pages, not including another 600+ pages of appendices (you can find links to all of them through the FCC’s ECFS on-line docketing system here) – and highly technical. The bottom line is that the working group’s tests demonstrated “potentially significant interference” between LightSquared operations in the upper 10 MHz portion of its band and “various GPS receivers”. “Some interference issues” were also identified in the lower 10 MHz portion of the band.

In its recommendations LightSquared lambastes GPS device manufacturers generally. But presumably recognizing that threatening the operation of gazillions of vitally important GPS units is probably not the best way to curry favor with the government or the public, LightSquared “expresses a willingness” to:

1. operate at lower power than permitted by its existing FCC authorization;
2. agree to a “standstill” in the terrestrial use of its upper 10 MHz frequencies immediately adjacent to the GPS band; and
3. commence terrestrial commercial operations only on the lower 10 MHz portion of its spectrum and to coordinate and share the cost of underwriting a workable solution for the small number of legacy precision measurement devices that may be at risk.

The FCC is looking for feedback on those proposals, and on the working group’s report as a whole. Historically the FCC has been very protective of the GPS band. It also gives great weight to the views of the federal government, which operates the GPS system and makes heavy use of it for defense, navigation, law enforcement, etc. Federal GPS users in the past have vigorously and successfully resisted incursions into the band from private interests, and will no doubt play a major part in the deliberations here.

Comments are due by July 30, 2011; reply comments by August 15, 2011. In view of the length and highly technical nature of the report – not to mention the size of the universe of potentially interested commenters (think everybody with a GPS unit, everybody who flies in airplanes, etc.), those deadlines seem a bit short. Be forewarned.

Problem two was poor MSS reception in the cities. An MSS handset works only when it has direct line-of-sight to the satellite, which is not always possible from deep in the urban canyons. And a signal that manages to traverse the distance from satellite to ground is too weak on arrival to penetrate deeply into steel-framed buildings.

Problem two could be solved. Various MSS providers asked the FCC for permission to put up towers around urban areas to fill in the weak satellite signal.  That got the cell companies’ attention. MSS operation from satellites presented them with little competitive threat, but improved urban service via towers might cut into revenues. The cell companies, moreover, had paid billions of dollars at auction for their frequencies, money they had to recover from subscribers, while MSS spectrum originally came for free. They saw tower-based MSS as unfair competition.

A 2003 FCC decision nonetheless allowed land-based operation on MSS frequencies under the name “ATC,” for Ancillary Terrestrial Component. At the same time, the FCC adopted rules meant to ensure the terrestrial component indeed remained ancillary to the satellite component.

Those rules have evolved. Their present form requires minimum satellite coverage, an available spare satellite, commercial offering of service via satellite, and – this is key – an “integrated service” of satellite MSS and ATC. The provider can establish this last with handsets capable of both satellite and ATC service, or can try to persuade the FCC by other means. But the rules say it cannot provide ATC service alone.

The 2003 decision failed to revive the market for MSS. And in the years since, the FCC has come under pressure to find more spectrum for terrestrial mobile broadband services, particularly in the range 225 MHz through 3,700 MHz.

Two MSS bands, with a prime broadband location near 1600 MHz, are licensed to a company called LightSquared. Although the name is recent, the company descends from satellite companies SkyTerra, Mobile Satellite Ventures, Motient Services, and American Mobile Satellite Company, which itself was a consortium of multiple satellite companies. LightSquared wants to provide MSS/ATC service, but with a twist. Instead of offering service directly to end users, it would sell “in bulk” to other companies (we’re imagining Wal-Mart, Comcast, Amazon, etc.), which in turn would retail the service to customers under their own brand names.

LightSquared promised the FCC it would abide by all the ATC rules. Among other things, it committed to providing ATC service only in an integrated offering with satellite MSS, as the rules require.

The FCC did not disbelieve LightSquared, exactly. But it did anticipate the possibility that Wal-Mart, et al., could drop the satellite component and offer just ATC to their retail customers. If they did, that would violate LightSquared’s license obligations. The FCC accordingly found LightSquared’s plans to be inconsistent with the rules.

But in the very next paragraph, and over the strenuous objections of the cell phone companies, the FCC waived the rules to allow LightSquared to proceed anyway. It noted the benefits to be expected from widely deployed MSS/ATC bandwidth, and recited the magic waiver words: rural broadband and public safety/homeland security. To be sure, it also included a large number of specific conditions, including a requirement that LightSquared itself offer integrated MSS/ATC service to the public.

The substance of the order is clear enough. But some of its procedural aspects raise questions.

First, the FCC granted the waiver with blinding speed: just over two months from initial request to final order, including the public comment cycles. This process usually takes much longer – at least a year, and often two. Second, the FCC states repeatedly that it based the waiver on the “totality of facts and circumstances,” a signal that it stands ready to deny similar waivers to other MSS companies. And a third oddity: LightSquared sought a ruling that its proposed service complied with the rules, but did not even ask for a waiver, except for a bare mention in passing. The FCC granted one anyway.   The FCC may believe LightSquared’s service is so important to the public interest as to warrant ultra-fast, spontaneous, one-of-a-kind relief. But we would feel better if the FCC had spelled out its reasoning on why it bestowed these blessings.

We see another troubling point. LightSquared could, by contract, require its wholesale customers – the Wal-Marts – to pass on the fully integrated MSS/ATC service to retail end users. That would eliminate any prospective rule violation, and hence any need for a waiver. The FCC order does not even mention the possibility. Nor would this necessarily raise anyone’s costs. By the terms of the waiver, LightSquared cannot charge Wal-Mart less for ATC-only service, and must subsidize the handsets, if necessary, so that end users do not pay extra for satellite capability. So why not make Wal-Mart subject to the same satellite-service obligations as other MSS providers? That would relieve the uneasy sense that the FCC has marked off a special lane to benefit one company.

Perhaps the ultimate goal is simply to repurpose underused MSS spectrum for terrestrial services. That is a rational objective. But this order is a curious way to start going about it.