The 13th is Apparently NOT the Charm: FCC Turns Down Serial Petitioner Yet Again

"Mother May I" follow-up: FCC affirms requirement for approval before further filings.

Perhaps you remember the individual who saw the FCC turn down his same applications 11 separate times over the last 13 years or so. In 2011 (in connection with Rejection Number 11), an exasperated FCC took the unusual step of forbidding the applicant from filing again on this matter, unless he first obtained prior approval from the Wireless Telecommunications Bureau. (After giving the applicant a chance to respond, the FCC confirmed the prior-approval requirement.)

The applicant petitioned for reconsideration of the prior-approval requirement. After pausing to think about whether the requirement itself barred such a petition, the Bureau decided it did not. But then, citing a rule permitting the dismissal of reconsideration petitions that “plainly do not warrant consideration,” the Bureau tossed the petition anyway in a terse order that lacked a detailed response to any of the petitioner’s points.

Perhaps you thought that would be the end of it.

Perhaps you underestimate the tenacity of the human spirit.

The applicant promptly asked the full FCC to review this last Bureau turn-down. There was a potentially fatal error in how he titled the request (yes, these details matter), which the applicant did not correct until after the deadline had passed. The FCC magnanimously accepted the correction anyway – and then turned down the applicant yet again.

The latest request for review raised two kinds of arguments. One set went back to the merits of the original license rejection, starting in 2000. The FCC declined to consider those arguments because they were not at issue in the order under challenge (i.e., the one rejecting reconsideration of the prior-approval requirement).

The applicant’s other arguments protested the prior-approval requirement on grounds related to free speech, right to petition the government, property rights, due process, and a related claim that the FCC had acted outside its authority. The Bureau, in denying reconsideration, had brushed aside each of these as being procedurally defective, raised too late, or presented without adequate supporting argument. The full FCC has now backed the Bureau in each of these respects, and rejected some new procedural arguments as well.

The applicant’s only remaining recourse would appear to be a trip to a U.S. Court of Appeals. Since the proceeding arises in the context of FCC decisions relating to licensing applications, the D.C. Circuit would ordinarily be the only place to go. However, the applicant might want to argue that the real crux at this stage of the dispute is no longer a licensing issue, but rather the prior-approval requirement which (the argument would go) did not, strictly speaking, entail action on a licensing application.  (The FCC itself observes that the underlying licensing component of the proceeding ended some five years ago.) If that argument were to succeed – and we offer no opinion as to whether it might – then the applicant might have access to a U.S. Court of Appeals other than the D.C. Circuit. Ordinarily a court appeal is expensive enough – typically in six figures – to deter anyone not having both a lot at stake and a lot of confidence in his arguments. But the applicant here has been acting as his own lawyer, which brings the costs way down, and he seems not to be lacking in confidence. He has at least 30 days to decide.

TV "White Space" Devices Go Nationwide

New action follows December roll-out to eastern states.

TV “white space” devices, which operate on an unlicensed basis in locally vacant TV spectrum, are now authorized nationwide. This is pretty fast, by Government standards; just last December the FCC okayed the first large-scale roll-out to seven eastern states plus Washington, D.C. The class of approved coordinators for the database these devices rely on to find open channels is growing much more slowly. Also growing slowly is the number of FCC-approved devices that can use the service; we count just five so far.

FCC Approves "White Space" Devices in Eastern U.S.

New systems must protect many other services from interference.

Fully four years after adopting rules for unlicensed TV Band Devices (TVBDs), also called “white space” systems, the FCC has authorized roll-out beyond the two small test areas previously approved. Touted by advocates as “Wi-Fi on steroids,” TVBDs can now boot up in New York, New Jersey, Pennsylvania, Delaware, Maryland, Washington DC, Virginia, and North Carolina.

The FCC expects to extend authorization nationwide by mid-January.

TVBDs are required to avoid causing interference to multiple services: broadcast TV; fixed broadcast auxiliary service links; receive sites for TV translators, low power TVs, Class A TVs, and multichannel video programming distributors; public safety and private land mobile; offshore radio telephone; radio astronomy; and “low power auxiliary service,” which includes licensed (and some unlicensed) wireless microphones. 

The complexity of the TVBD rules results from the need to ensure that all of these services can operate unharmed. In many metropolitan areas having multiple TV channels and heavy use of wireless microphones, vacant spectrum for TVBDs is already scarce. The FCC’s ongoing plans to consolidate TV broadcasters onto fewer channels, so as to free up more spectrum for wireless use, will only make things worse.

Simultaneously with the spread of TVBDs into the Middle Atlantic states, the FCC expanded its registration program for wireless microphones from those same states out to the rest of the country, keeping the wireless mic registrations a step ahead of the TVBD roll-out.

FCC Launches Nationwide Registration of Wireless Microphones

Registration is needed to protect qualifying events from interference caused by TV Band Devices

The FCC has expanded its registration program for wireless microphones from the Middle Atlantic states to the rest of the country.   Registration helps to protect qualifying wireless microphones that operate in vacant TV channels from interference caused by TV Band Devices (TVBDs), also called “white space” systems, that likewise use vacant TV slots.

When the FCC established rules for TVBDs, it required those devices to avoid interfering not only with TV stations, but also with several other categories of equipment operating on TV frequencies. The most populous of those, by far, are the wireless microphones that are ubiquitous in TV, stage, and film production.

Most wireless microphones used in TV and films are licensed by the FCC.  Most others – including those used in stage shows, churches, and the FCC meeting room – operated illegally until January 2010, when the FCC authorized low-power models on an unlicensed basis by waiver. (As it considers whether to make those rules permanent, the FCC recently sought to update the record on wireless microphone issues generally.)

Two TV channels in every market are closed to TVBDs, so as to leave room for wireless microphones. Licensed wireless microphones needing additional channels are entitled to interference protection from TVBDs. So are unlicensed microphones on other channels, but only if used for major sporting events, live theatrical productions and shows, and similar occasions that require more microphones than the set-aside channels can accommodate.

To implement protection, qualified events must register in the database that controls which frequencies TVBDs can use at each location. The FCC has authorized the operation of TVBDs in New York, New Jersey, Pennsylvania, Delaware, Maryland, Washington DC, Virginia, and North Carolina, and expects nationwide authorization by mid-January. Those who distribute or use wireless microphones should make sure any needed registrations are in place before TVBDs are deployed in their vicinity.

The details of the registration process are available here. The conditions and procedures are complex; and the FCC cautions that most uses of unlicensed wireless microphone do not qualify for registration. We recommend planning ahead.

Update: Revised "White Space" Rules To Take Effect June 18

Last month we reported on an FCC action that may mark the end of the decade-long “white space” proceeding authorizing the operation of some unlicensed devices in the broadcast television bands. The Commission’s Third Memorandum Opinion and Order (3rd MO&O), released in early April, disposed of a handful of petitions for reconsideration of the agency’s 2010 decision which had in turn tweaked technical “white space” specs adopted back in 2008. The 3rd MO&O has now been published in the Federal Register, which means that, barring any extraordinary intervening event (like the issuance of a stay – the approximate likelihood of which is pretty much zero), the rules as modified last month will take effect on June 18, 2012

FCC Adjusts "White Space" Rules

Minor changes may signal an end to almost a decade of rulemaking.

The FCC has released yet another decision in its long-running effort to implement rules allowing unlicensed “white space” devices in the television bands. The latest revision does not represent any wholesale changes, but will make it easier for some devices to operate.

White space devices (TV Band Devices or TVBDs, in the FCC’s nomenclature) rely on the fact that every location has some TV spectrum not being used. Those vacant frequencies typically show up as white spaces on a map of spectrum occupancy – hence the name. Technical studies show that properly controlled unlicensed devices can use these channels without causing interference to TV operation and other authorized users, including wireless microphones.

Following a Notice of Inquiry late in 2002, and a 2004 Notice of Proposed Rulemaking, the FCC first adopted rules allowing white space devices in 2006, but left the technical specifics for a later date. Those came in 2008, and then in 2010 the FCC responded to petitions for reconsideration with a number of revisions. Now the FCC has addressed petitions for reconsideration of the 2010 order.

The rules categorize each white space device as either fixed or mobile. A fixed device must have its location either professionally programmed in or determined by an on-board GPS device, and is subject to limits on operating power, antenna height, and antenna gain limits. Before operating, it must query a database of available spectrum for its location. A mobile device may similarly use GPS to determine its location and then query a database (Mode II devices); alternatively, it can contact another white space device that will in turn query the database (Mode I devices). The FCC has so far approved ten private companies to administer the databases, of which two have completed testing to the FCC’s satisfaction.

In its recent order disposing of the petitions for reconsiderations, the Commission provided the following changes and clarifications:

 Antenna Height. The 2010 rules limited fixed device antenna heights to a maximum of 30 meters above ground, and the height above the average terrain (HAAT) to no more than 76 meters. Several parties requested reconsideration of this restriction, particularly the HAAT portion. (According to one, the majority of the state of West Virginia would have been off-limits.) The FCC now allows fixed white space devices to have antennas up to 250 meters above average terrain, although still no more than 30 meters above ground level. At the same time, the FCC revised the separation distances between fixed white space devices and television contours to allow for the greater HAAT, but left unchanged the separations for wireless microphones and the exclusion zones around MVPD, LPTV, and BAS receive sites.  A device that provides database information to Mode I portable devices must comply with the previous HAAT limitations, so as to keep the Mode I device from straying too far from a known location.

Out-of-Band Emissions: The 2010 rules limited out-of-band emissions to 72.8 dB below the device’s highest in-band emissions. Now the out-of-band emissions are relaxed to 72.8 dB below the maximum power allowed within the 6 MHz bandwidth. The new order also cuts back the required occupied bandwidth from 6 MHz to 5.5 MHz, so as to ease the roll-off at the channel edges, and slightly increases the allowable power spectral density so as to leave total power unchanged.

Channel 52 Protection:  As part of the transition to digital television, the FCC auctioned former TV channels 52 and above for wireless use. The wireless companies have long sought restrictions on channel 51 TV operation to protect their frequencies just above, and similarly requested limits on white space devices on channel 51. The FCC refused, partly on procedural grounds, and partly on the principle that white space devices, being unlicensed, are already required to protect licensed wireless operations.

Classes of Devices: The FCC rejected a new class of white space device, similar to “Mode II” but for indoor use only, without GPS capabilities. The FCC feared these could be easily moved without updating their locations, thus creating interference. It also found the new class to be largely unnecessary, as Mode I portable devices may operate without geolocation (although they must query a Mode II or fixed device periodically).

Confidentiality of Database Information: The FCC makes publicly available all information required to be included in the databases that white spaces devices must search before operating.  A cable association asked the FCC to withhold certain data, including coordinates of cable headends and towers, claiming this type of equipment was “critical infrastructure” that could be subject to terrorist attack. The FCC disagreed with the premise and refused the rule change.

Finally, the FCC clarified two points. It emphasized that LPTV, television translator, and Class A television stations will have their receive sites protected based on the coordinates available in the existing CDBS database. The FCC will create a new web interface so that broadcasters can update the information. Second, the recent order corrects the coordinates of certain radio astronomy sites, which must be included in white spaces databases and protected by white spaces devices.

Most of the rule changes will take effect 30 days after publication in the Federal Register. Revisions to the filing of receive site information and entry of other information into the white spaces databases require OMB sign-off, and will probably take a few months longer.   Check back here for updates.

So far all of these rules control only a limited deployment in Wilmington, NC. But with the rules approaching final form, and more databases coming on line, white space devices may finally take the big step from PowerPoint to reality.

"Mother May I?" - FCC-Style

After rejecting serial petitioner 11 times, FCC confirms that he’ll have to ask permission before he can file anything more on the topic.

Long-time readers will recall the individual who, as of last July, had been turned down by the FCC eleven separate times on the same matter. In the ninth turn-down, the FCC said, “We plan to give no further consideration to this matter, and the staff is hereby directed to dismiss summarily any subsequent pleadings . . . .” Number ten followed that guidance by dismissing in two short paragraphs.

When the individual came back yet again, turn-down number eleven deemed his last several submissions to have been frivolous, and imposed a rare sanction: it required the individual to seek advance permission from the relevant bureau before filing any further documents. Think “Mother May I” or “Simon Says”, but for grown-ups, in official pleadings. In a passage it may have come to regret, the FCC gave him time to comment before the sanction went into effect.

You will not be surprised to learn the affected individual had something to say. The FCC has now responded.

The sanctioned individual argued first that, while the FCC can bounce a frivolous pleading after it arrives, the agency has no authority to prevent its being filed in the first place; by purporting to do just that, the FCC violates his First Amendment right to petition the Government. The FCC answers that this particular person has already petitioned the Government plenty. Plus, it said, the Commission has the right to control its own docket and, in effect, to avoid wasting the staff’s time.

The individual next claimed that his filings, far from being frivolous, in fact presented bona fide arguments, and besides, there hadn’t been enough of them to warrant a sanction. In response, the FCC digs back through the stack of papers to find the actual point at issue – whether a 2005 petition should have been accepted despite having been filed late – and restates that none of the filings since then have presented legally adequate grounds for ignoring the 2005 deadline. That’s what made them frivolous, it says. The FCC does, however, narrow the sanction to make clear it applies only to the one proceeding that produced the seemingly endless stream of filings.

If you ever make FCC filings yourself, without a lawyer, this order makes a point you should know about. Section 1.52 of the Commission’s rules says an attorney, by signing a document, certifies there is good ground to support it, and it is not interposed for delay. The rule adds that an attorney can be sanctioned for a willful violation, or for including “scandalous or indecent matter.” People filing without a lawyer may have believed they were not subject to the rule, which refers only to attorneys. And certainly, over the years, certain non-lawyers’ submissions have consistently fallen well short of Section 1.52. But the FCC has now made clear it will impose the same standards on non-lawyers as it has always imposed on attorneys. If you are one of those in the habit of dashing off unfounded pleadings, this is the time to shape up.

The next step in this process, by reasonable extrapolation, will be an FCC order denying reconsideration of the newly affirmed sanction. Watch this space.

Reconsideration Request Draws Eleventh Rejection from FCC

Applicant is barred from making further filings on same matter without FCC staff permission; Quoth the FCC, “Nevermore . . . and we mean it”

We reported last year on a wireless provider whose applications for a certain service were dismissed by the FCC. The applicant sought reconsideration and review of that decision – not once or twice, but (up to that point) ten separate times. The FCC consistently turned him down.  In refusal number nine, it added, “We plan to give no further consideration to this matter, and the staff is hereby directed to dismiss summarily any subsequent pleadings . . . .”

We reported how the applicant sought reconsideration yet again. A Deputy Bureau Chief, in two brief paragraphs that cited the “no further consideration” order, dismissed the applicant once more.  While we promised then to provide updates, we thought, frankly, that would be the end of it. 

We were wrong.

The applicant took that last order to the full Commission, seeking review on the ground that the Deputy Bureau Chief had failed to consider certain new facts. Last week brought turn-down number eleven. Letting its exasperation show, the FCC retorted that, while a petitioner for reconsideration could rely on new facts, “[s]uch new facts or circumstances must also be relevant[.]” The FCC ruled the applicant

has presented no grounds for reconsideration of the summary dismissal of his petition for reconsideration. We therefore dismiss the instant petition for reconsideration as repetitious and frivolous.

The FCC also prohibited the applicant, and people acting for him, from making further filings in the same matter without the consent of Bureau staff.   Any request for consent must include this damning statement, verbatim:

Pursuant to previous findings by the FCC that [the applicant] has abused Commission processes, and requiring [applicant] to request permission of the Wireless Telecommunications Bureau to file further documents, [applicant] submits this request.

Lest any doubts remain, the FCC further instructed the Bureau to deny permission to file documents that are “frivolous, repetitive, irrelevant, obstructive, or that appear designed to cause harm in furtherance of a private interest.” The obligation to seek permission does not take effect for 30 days, during which time the applicant can try to persuade the FCC to change its mind – if not on the long-contested licenses, then at least on the permission-to-file requirement.

Further action at the FCC does not seem likely to bear fruit. (Of course, we would have said that eight or nine reconsiderations ago.) So far as we can see, the applicant’s only procedural alternative is in the U.S. Court of Appeals. But that august body has a long history of defending the FCC’s rules against what it sees as efforts to circumvent them.

We will report any further developments here.

FCC Rejects Same Application Ten Times - So Far

Persistent applicant seeks successive reconsiderations; Quoth the FCC, “Nevermore!”

This is another in our continuing series on people who just don’t give up.

Back in 2000, an individual with interests in several wireless companies filed applications to provide maritime radio service along various U.S. waterways. The FCC dismissed the applications because they did not meet the coverage requirements then in effect. Unhappy with the outcome, the applicant filed petitions for reconsideration (denied in 2001), a petition for further reconsideration (denied in 2001), applications for review (denied in 2002), and then appeals to the U.S. Court of Appeals (terminated by the court in 2007).

In 2002, the FCC changed the coverage requirements. The same applicant filed a request to have his applications reinstated (denied in 2004), a petition for reconsideration (dismissed in 2005 as untimely), a petition for reconsideration (denied in 2006), an application for review (denied in 2008), and a petition for reconsideration (dismissed in January, 2010). The FCC tossed this last one as repetitious because, in the Commission’s view, it offered no new relevant information. In an unusual move, the FCC added: “We plan to give no further consideration to this matter, and the staff is hereby directed to dismiss summarily any subsequent pleadings filed by [this applicant] or related parties with respect to these applications . . . .”

That makes nine separate times the FCC rejected the same applications. Most people, by then, would have concluded that “No!” means no. That last dismissal for repetitiousness would deter even the most determined applicant. Even fewer of those would have the nerve to try again, after the FCC ordered its staff not to consider further requests.

But this gentleman is apparently cut from different cloth. Undaunted, he filed a petition seeking reconsideration of the dismissal for repetitiousness of his last reconsideration request.

That one did not even make it to the full Commission. In two brief paragraphs, with a terse citation to the “no further consideration” order, a Deputy Bureau Chief dismissed the arguments yet again.

This is an exciting time for those with an interest in someone so indomitable of spirit.  They will eagerly scan the FCC daily releases over the weeks to come. Will he try to extend his streak at the FCC? Or challenge the most recent dismissal in court? Watch this space for updates.