Last month we reported on the FCC’s prompt adoption of new service rules governing operation in the H Block, i.e., the portion of the spectrum consisting of the 1915-1920 MHz and 1995-2000 MHz bands. The Commission’s Report and Order has now been published in the Federal Register, which sets the effective date for most of the new rules at September 16, 2013. The exceptions? Those would be Sections 1.2105(a)(2)(xii), 27.12, and 27.17, all of which involve new “information collections” that must first be run past the Office of Management and Budget, thanks to the Paperwork Reduction Act. That process will take several months, at least. Check back here for updates.
FCC rules will ensure the new arrivals will play nice with PCS.
In case you’ve forgotten, the H Block consists of the 1915-1920 MHz and 1995-2000 MHz bands. Congress directed the Commission to license this spectrum using competitive bidding as long as the H Block spectrum could be used without causing harmful interference to the neighboring PCS downlink band (1930-1995 MHz).
The folks at the Commission have decided that the H Block kids can indeed play nice with their PCS neighbors. Of course, the parental units at the FCC have also adopted a set of rules, including appropriate power and out-of-band emission limits, for the H Block kids to help ensure that they don’t cause any trouble. According to the FCC, the rules are intended to prevent only “harmful interference” but not necessarily all “detectable interference.” Parents can only do so much to protect their kids, right?
The “Service Rules” for this band follow for the most part the by now familiar drill – i.e., renewal, buildout, and discontinuance policies that have been applied to other new services. Here are a few highlights from the Commission’s recent H Block Report and Order:
- H Block licenses will be licensed on an Economic Area basis using a system of competitive bidding (auction schedule yet to be announced).
- Since the H Block is adjacent to the broadband PCS band, it would be possible for a single entity to obtain licenses for both bands in the same area and “seek to deploy a wider channel bandwidth in that area across both bands.” The Commission is okay with that, as long as the combined operations adhere to the more restrictive set of rules in situations where interference or technical rules for the two bands should differ. Sprint, the holder of the adjacent PCS band, is the only potential beneficiary of this rule.
- License terms and renewal terms will be for ten years. But licensees failing to meet interim buildout requirements (by offering service to at least 40% of the population within four years) will have their “Final Buildout Requirement . . . accelerated by two years” – which is the Commission’s fancy way of saying that failure to meet the interim buildout requirements at the four-year mark will result in shrinkage of the entire license term from ten to eight years.
- The Spectrum Act prohibits “a person who has been, for reasons of national security, barred by any agency of the Federal Government from bidding on a contract, participating in an auction, or receiving a grant” from participating in competitive bidding. Accordingly, the Commission will require potential H Block auction bidders to submit an additional “national security certification” in order to participate in the competitive bidding process. (Edward Snowden probably shouldn’t bother applying.)
While the FCC has adopted the new rules, they won’t take effect immediately. Since they create new “information collections” subject to the hilariously named Paperwork Reduction Act, those new collections will have to be run through the standard PRA review process, which normally takes several months. The remainder of the rules will take effect 30 days after they’re published in the Federal Register. Check back here for updates on that front.
And for all you film enthusiasts. In his separate concurring statement, Commission Pai – whose excellent cinematic taste has previously been noted here – has this to say about the Twilight series of movies: “[T]hankfully, we’re done with them all.” Ouch. This might be a good time for some judicious pruning of your Netflix queue.
Advanced Wireless Services proposed for H Block spectrum – as long as the NKOTHB are in sync with PCS
Nearly a year ago Congress passed, and President Obama signed into law, the Middle Class Tax Relief and Job Creation Act of 2012. The 47% famously referred to by former Candidate Romney may be surprised to learn that more than 53% of the text of the law dealt with matters largely unrelated to tax relief or job creation. By contrast, Title VI of the law – what we in the biz refer to as the “Spectrum Act” – comprises a whopping 55 out of the law’s 102 pages. That amounts to nearly 54% by our math (don’t worry, we used a calculator). Not surprisingly, we have reported on numerous aspects of the Spectrum Act here over the last year.
Don’t fret if you’ve missed out – there’s plenty more Spectrum Act fun still to come.
For example, we have the FCC’s Notice of Proposed Rulemaking (NPRM), released last month and recently published in the Federal Register, seeking comment on proposed service rules for the Advanced Wireless Services (AWS) H Block spectrum. Licenses in the block are anticipated to be offered for competitive bidding in 2013.
Pat yourself on the back – but not too hard – if you deduced that the NPRM and anticipated AWS H Block spectrum auction are products of the Spectrum Act. Hence, the law directs the FCC to “unleash” (or grant, if you prefer) new initial licenses in the AWS H Block (among others) within three years of the Spectrum Act’s passage. The goal is to “unleash more spectrum for broadband” because doing so is supposedly “essential” to the achievement of “economic growth, job creation and global competitiveness” and nirvana generally. (To all the “leashed” spectrum out there yearning for freedom – don’t worry, your time will come.) The NPRM is the FCC’s first step in implementing this particular Spectrum Act directive.
The AWS H Block comprises the spectrum blocks at 1915-1920 MHz (Lower H Block) and 1995-2000 MHz (Upper H Block). For those new to the block, the AWS H Block is actually adjacent to the PCS-block; the “H” is a continuation of the PCS-block letter designations.
This isn’t the first time the Commission has proposed service rules for the H Block. Comments were solicited back in 2004, and again in a follow-up in 2008. However, due to the passage of time and advances in technology, the Commission figures it’s a good idea to revisit H Block issues again, including the question of whether “harmful interference” to the neighboring PCS-block may occur.
The Spectrum Act expects residents in the AWS H Block to play nice with their PCS neighbors. In fact, the Act prohibits the Commission from granting initial licenses if it should determine that licensing in the H Block would cause harmful interference to commercial mobile service licensees in the PCS Downlink band (1930-1995 MHz). The Commission has tentatively concluded that licensing in the Upper H Block will not cause harmful interference to the PCS Downlink band. The Commission bases this tentative conclusion on the fact that, in previous proceedings, no contrary technical data/analyses were submitted. (Note: AT&T appears to disagree with the FCC’s conclusion.)
The potential for harmful interference from the Lower H Block, on the other hand, has been hotly debated, and the various PCS licensees have proposed different technical rules on how this result might be avoided. Which of those proposals would work best to avoid harmful interference from the Lower H Block (a matter the PCS licensees haven’t been able to agree on so far) is an issue on which the NPRM seeks comment. The outcome of this debate may ultimately determine the fate of the H Block spectrum.
It should be noted that this NPRM was a companion to the Commission’s simultaneous decision to re-purpose the adjacent 2000-2020 MHz band for terrestrial operations. This band was purchased as a primarily mobile satellite band by DISH Network about a year ago. The FCC has now converted it to satellite and terrestrial use and re-dubbed it the “AWS-4” band. Before doing so, however, the Commission bent over backwards to ensure that terrestrial operations from AWS-4 would not interfere with the yet-to-be created H Block.
If the Commission decides, after evaluating the comments filed in response to the NPRM, that the new kids on the H Block won’t play nice with the kids in the PCS neighborhood, the Spectrum Act’s desired unleashing of spectrum may be stymied. However, rather than adopt an “all-or-nothing” approach, the Commission has offered up an alternative. The NPRM tentatively concludes that the Spectrum Act would still require the Commission to auction and license half of the H Block spectrum even if the other half were found to cause harmful interference to the PCS Downlink band. The remaining question would then be: if one portion of the H Block gets “unleashed,” what should the Commission do with other? (The NPRM doesn’t presume which of the two portions – upper or lower – would necessarily be “unleashed” first in this half-block auction scenario.) Comments are solicited on the appropriate use for such spectrum and/or whether it should be designated for Unlicensed PCS.
Some other proposals open for comment in the NPRM include:
- licensing of the H Block for exclusive geographic areas by Economic Areas;
- an interim (within 4 years) buildout requirement to offer service and signal coverage to at least 40% of the population;
- a final buildout requirement of 70% coverage;
- cost-sharing formulas; and
- licensing and operating rules.
Take a look at the NPRM for the full list of issues/proposals on which comments are being sought.
Comments are currently due by February 6, 2013 and reply comments are due by March 6, 2013.
Action affects devices in the 1920-30 MHz band.
A rule change the FCC adopted (and we reported on) last March, to simplify the technical rules for unlicensed PCS devices in the 1920-30 MHz band, has finally hit the Federal Register. The new rules take effect on August 22.
New rules clear way for denser device concentration, higher data rates.
The FCC has relaxed the rules for unlicensed PCS.
If you have no idea what unlicensed PCS is, you have a lot of company. Even among spectrum experts.
Most voice calls from a cell phone don’t actually use cellular frequencies, which are a little above 800 MHz, but instead use higher frequencies allocated to the Personal Communications Service (PCS) in the vicinity of 1.9 GHz. Some PCS frequencies carry signals from the tower to your handset, while other frequencies carry signals the other way, from the handset to the tower. The two have to be kept well separated, lest the transmitter in the handset overpower its own receiver. Of the several ways to achieve this separation, the FCC chose the simplest: a “guard band” 15 MHz wide between the tower-to-handset and handset-to-tower frequencies. But the guard band need not be completely idle, and in fact is used for multiple purposes. One segment, at 1920-1930 MHz, is available on a shared basis for unlicensed applications: hence unlicensed PCS, or in Washington-speak, UPCS.
Unlike some of the other unlicensed bands that house Wi-Wi, Bluetooth, ZigBee, and thousands of consumer applications (our own favorite is a wireless diaper wetness sensor), the UPCS band is lightly populated, mostly with cordless phones. The FCC rules for the band include a complicated “spectrum etiquette” – a listen-before-talk scheme that minimizes the odds of one device stepping on another’s transmission. But the benefit comes with downsides: added equipment costs, and an upper limit on the number of devices that can successfully operate in a given environment.
The new FCC order does not eliminate these technical rules, but it simplifies them considerably. The result will allow more devices to work in close quarters, and will allow devices to transmit at higher data rates. The new rules are closer to those used in many other countries, which simplifies life for global manufacturers. The FCC also cleaned up provisions that were needed when the 1920-1930 MHz band was transitioning from fixed microwave to UPCS and the other current applications, but are no longer needed.
“Permanent” discontinuation of PCS operation is the trigger – but when is discontinuation “permanent”?
Late last month the FCC’s Wireless Bureau issued an interesting order which should have sent a chill down the spines of all Personal Communications Service (PCS) licensees who, for whatever reason, have failed to use their spectrum for a significant period of time. The Bureau declared that one poor licensee – who had voluntarily acknowledged to the FCC that it hadn’t operated its system for at least two years – had “permanently discontinued” operation. From that the Bureau concluded that the licenses had been automatically canceled.
The hapless licensee, Northstar Technology, LLC, had defaulted on debts to a number of Federal agencies, including the Commission (for an unpaid auction bid). Nevertheless, it managed to negotiate a settlement with the Feds pursuant to which it would sell the PCS licenses it held and assign the proceeds over to the US of A.
A swell plan it was, but for one slight snag: because Northstar hadn’t operated its system for more than two years, Northstar’s licenses had cancelled automatically, according to the Bureau. As a result, there was nothing to sell and no proceeds to pay over to the government . . . unless, that is, the Commission was willing to waive its automatic cancellation rule. Since such a waiver would result in a payment of up to $10 million into the Federal coffers, it should surprise nobody that the rule was cheerfully waived in this particular case.
But that waiver is not the real story here. Rather, the real story is the remarkable new standard (and we’re using that term very loosely here) which the Bureau has now established as a trigger for automatic cancellation of PCS licenses.
One of the fundamental presumptions of radio licenseeship is that a licensee must either use its licensed spectrum or lose it. The operative rule codifying this principle provides that if you permanently discontinue service, your license will automatically be cancelled. In virtually every other radio service that we can think of – with one notable exception – the FCC specifies strict time frames regarding discontinuance, or abandonment, or permanent cessation, of service. A licensee who fails to meet the minimum operational period specified for its particular service will be deemed to have permanently discontinued operation. When that occurs, the licensee must either turn in its license or have it cancelled by operation of law.
But Northstar’s were PCS licenses. By some odd quirk, the PCS rules do not define a period of non-operation that leads to a presumption that a PCS operation has been “permanently discontinued”. Because of the rules’ silence on this point, PCS licensees have historically taken the perfectly reasonable position that a licensee has not permanently discontinued operations until it has in fact ceased operations with the intent of never resuming them. In the absence of a legal presumption established by a rule, the actual intent of the licensee to resume operations at a later point would seem to easily and satisfactorily rebut any contention that it had permanently discontinued operations. The situation might be likened to that treadmill down in your basement which has acquired a thick coating of dust since it was last used in 1989. But if asked, you could and would truthfully insist that you have every intention of getting on that treadmill and getting back into shape. In fact, you seriously think about firing it up every couple of weeks, but some other annoying factor always prevents you from doing so. No way have you “permanently discontinued” use of that treadmill!
But the FCC would take your treadmill away. The Bureau rather breezily noted that in its other services it deems permanent discontinuance to have occurred if a licensee ceases operations anywhere “from 90 days to up to one year or more.” Since Northstar had acknowledged in its application that it had not been operating the system for at least two years, the Northstar licenses were deemed to have cancelled automatically.
This completely unsupported and unprecedented declaration is flabbergasting on several levels.
First and foremost – when did the automatic cancellation occur? There is absolutely no way that any licensee would have known that a secret alarm clock with a silent alarm was ticking. And if there was such an alarm clock, did it silently go off at 90 days, 180 days, one year, or “more” – all of which would be potential yardsticks to measure PCS against. The Bureau does not say. All we know is that at some point by the two-year mark, the alarm clock had definitely gone off unbeknownst to anyone, and the license had been cancelled without the FCC, the licensee or anyone else doing or saying anything.
This is scary, since the law generally demands that people be given notice before the guillotine blade is allowed to fall.
Second, PCS licensees who are planning to sell their silent stations now face a quandary. If the station has been silent for any length of time (we assume you’re safe if you were silent for less than 90 days, but who knows?), neither the buyer nor the seller has assurance that the license has not been automatically cancelled by operation of a law that is unstated. Communications lawyers called upon to opine to the “good standing” of PCS licenses will be hard put to issue such opinions. A dark cloud of uncertainty has been cast over a whole service.
Unfortunately, the applicants involved in the Northstar case are unlikely to seek review; the Commission waived the “permanent discontinuance” rule for them in order to facilitate the effectuation of the license sales, so they’d be foolish to challenge the ruling. Under ordinary principles, no other party has standing to seek review of the Bureau’s decision. As a result, even though the decision seems (to this observer, at least) grossly, unequivocally and manifestly erroneous, it will sit there for a while until it can be revisited. (One avenue might be the periodic review of non-controversial rules that the FCC undertakes every few years. Such a proceeding is now open, and the Commission could remedy the effect of this decision by simply adopting a firm standard for measuring permanent discontinuance of service, prospectively applied.) In the meantime, forget about your treadmill and get that PCS system running.