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

On reconsideration, though, the FCC determined that some MVPD services and translator/LPTV/Class A stations relying on over-the-air reception to obtain and redistribute TV signals are located more than 80 kilometers from the originating TV station’s protected service contour. In order to avoid disruption in those circumstances, the Commission opted to expand the notion of “within reasonable bounds” temporarily: it provided a 90-day opportunity (commencing with the effective date of the rules) for MVPD’s, TV translator, LPTV and Class A TV stations to request a rule waiver to allow them to register their receive locations in the TV bands devices database. This opportunity is available only for locations at which the TV programming is received over-the-air more than 80 kilometers from the originating station’s protected contour.

The initial 90-day waiver request filing period will expire on April 5, 2011. (Facilities that meet the geographic standards but don’t get licensed until later will have 90 days, starting with commencement of operation, to file for a waiver.)

Waiver requests should demonstrate how the operation of an unlicensed device near the relevant receive site would act to disrupt current patterns of television viewing. After a waiver request is received, the FCC will put it out for public comment and then will make a determination as to whether it will be granted.

The Commission has not yet provided any special instructions for the filing of such a waiver request.  Check back here for updates on that score. But absent any such instructions, it would appear that filing through the Secretary’s office with a reference to ET Docket Nos. 02-380 and 04-186 should do the trick. Electronic filing in the dockets might also be a possibility – but, again, the FCC hasn’t given any guidance yet. We’ll post a follow-up on this as developments warrant.

This inclusive non-decision may reflect the FCC’s often-expressed distaste for “picking winners and losers.” Or it might follow from the FCC’s having neglected to state, at the outset, the criteria it would use for selection, an omission that leaves it vulnerable to challenge from the losers. This problem does not arise, of course, if there are no losers.

One applicant and a wireless microphone coalition challenged the impartiality of some other applicants. The FCC responded with a stern injunction against the administrators engaging in anti-competitive practices, and a promise of careful oversight.

Here at CommLawBlog, we have two concerns.

The FCC could have decided to manage the database itself. It certainly knows how; it keeps close track of millions of licenses. The FCC opted instead to farm out the work. With one or two administrators, that might have been a labor-saving move. But riding herd on nine of them, some inexperienced, each working with a database built to a different design, might turn out to be more work for the FCC than just doing the job on its own.

The other problem relates to data quality. Each administrator will keep its own database, but all nine must reflect the same underlying reality. Some of the data are slow-moving and should be easy to maintain – TV station contours, for example, and locations of protected TV receive sites, such as cable TV headends and TV translators. Potentially more troublesome, though, will be wireless microphone users’ frequent and changing registrations as they sign up for short-term interference protection at sporting events, political events, concerts, etc. These data will be volatile.

Suppose NBC, say, as part of its planning to cover an event, logs on to its preferred database administrator and registers a few dozen wireless microphones by date, time, place, and TV channel number. That information must be made available to every TVBD in the vicinity of the event, through every database administrator. Accordingly, the administrator receiving the registration must quickly and accurately disseminate it to the other eight, in a form that allows easy incorporation into their own, differently-designed databases. This kind of coordination is hard enough among two or three parties. We wonder whether nine can bring it off reliably.

And those nine will be competitors after the same business. It may become tempting for some to try making the others look bad by feeding them bad (or late) information. Even greater will be the temptation to cut costs by using ill-trained and badly supervised staff. Just as the hygiene of a shared kitchen quickly sinks to the level of the sloppiest person using it, so will the quality of the shared data reflect the least careful administrator.  (Users may appreciate the lower cost . . . at least until they realize that you do, in fact, get what you pay for.) 

To say, “You’re all winners!” is fine for T-ball. But maintaining a large and critical database takes real skill and a large measure of dedication. We may all come to wish the FCC had exercised greater adult authority in making its choices.

We are also interested to see how the expected changes will affect plans for “white space” devices. These, if they ever appear, are supposed to operate in unused TV spectrum, but the FCC’s plans will make that scarce. The wireless microphones used in TV and movie production, among other applications, also use vacant TV channels, and may likewise have less spectrum to work in. The “spectrum domino effect” at work.

The second item on the November 30 agenda is a proposed change to the experimental licensing rules.  This category of license allows companies, universities, and others to experiment with kinds of radios, often newly developed, that do not comply with the FCC’s detailed technical rules. In fact, most of the wireless gadgets we use every day started life under one of these experimental licenses. The substance of how these licenses work has been largely unchanged for decades. The FCC is considering a facelift to make them more flexible.

Third is a Notice of Inquiry on “opportunistic use” of spectrum. In this context the term has no derogatory connotations, but rather refers to radio technologies that “sniff” the air for temporarily vacant frequencies, and move into them until the rightful owner needs them back. The FCC here continues a sequence of developments that began with software-defined radios in 2001, and continued with cognitive radios in 2005. It also continues a parallel effort, under the general heading “secondary markets,” toward setting up licensing rules that facilitate temporary handovers of spectrum.

By the time of the FCC meeting on November 30, the leftover turkey should be gone, the tryptophan should have worn off, and we should all be ready to work. The FCC will give all of us here plenty to work on.

STAs are not a rarity. They are routinely issued to, say, stations that suddenly lose their transmitter sites or that suffer equipment damage during a storm. LPTV stations may well need STAs during the process of transitioning from analog to digital operation – a transition that the FCC is proposing to make mandatory. An STA allows the station to continue to operate – possibly from an alternate site or with facilities other than those specified in its license (or license application) – until it can either (a) return to its authorized site/facilities or (b) obtain permanent authority for its modified site/facilities.

The Commission’s failure to include STAs in the white spaces database appears to be a serious slip. Operation pursuant to an STA is Commission-authorized broadcast operation which should be protected from white spaces devices to the same degree as “licensed” operation.  This error seems to us to merit a petition for reconsideration by the TV industry.

The other issue involves TV translators, LPTV stations, cable systems and other multichannel video programming distributors (let’s call them, collectively, “retransmitters”). As might be expected, retransmitters  retransmit other stations’ signals, signals which are generally received by the retransmitter over-the-air. If a white spaces device cranks up near the point at which the retransmitter ordinarily picks up the signal, the retransmitter’s ability to effectively operate is threatened.

The Commission recognizes this problem. In the 2008 version of the white spaces rules, the Commission permitted some (but not all) retransmitters to register their over-the-air receive sites in the white spaces database – but only if those sites were (a) within 80 kilometers (50 miles) of the originating station’s service contour but (b) outside that station’s protected contour. Now, however, at the suggestion of a number of parties the Commission has expanded the area in which receive sites may be registered. That expansion, though, is not gotcha free. 

Under the newly-announced revisions to the rules, all (not just some) retransmitters with over-the-air receive sites more than 80 kilometers from the edge of the received station’s protected service contour may submit waiver requests seeking to have those receive sites registered. The Commission will then issue a public notice soliciting comments on such waiver requests. After reviewing everything that comes in, the Commission will decide on a case-by-case basis whether or not to include each such site in the database.

Existing operators who may wish to take advantage of this potential registration opportunity should be particularly alert. Starting with the effective date of the new rules, such operators will have 90 days in which to submit their waiver requests. (Retransmitters who commence operations in the future will have 90 days from the date on which they start up.) The Commission has not provided a time frame during which its resolution of such requests can be expected.

The effective date of the new rules has not yet been announced, and won’t occur (at the earliest) until 30 days after the new rules have been published in the Federal Register. Additionally, it seems unlikely that the Commission will invite new registrations (or registration waiver requests) until a number of practical questions relating to the white spaces database have been resolved. For example, who will manage the database, how will registrations and the like be submitted, how will the database be implemented? Obviously, there is still much to be done before white spaces devices are likely be unleashed on us all.

The technical problems with white space devices center on avoiding interference to TV stations and the wireless microphones that have long used vacant TV channels. The original plan called for each device both to use geolocation – ascertaining its own position using GPS and consulting a database to find locally vacant channels – and also to “sniff” for TV stations and wireless microphones, a process called spectrum sensing. (The FCC exempted from geolocation certain devices under the control of other devices and, separately, allowed for the possibility of some sensing-only devices.)

The new decision confirms the geolocation requirement, with many critical details still to be fleshed out by the Office of Engineering and Technology. But the FCC has pulled back on sensing. When it tested spectrum sensing technologies several months ago, none of them worked well. This result surprised us, as white space proponents had touted sensing as the ultimate safeguard against interference. In some other universe, the agency might insist the promised technology function properly before it allowed deployment. This universe, though, works differently: the FCC’s spectrum-exploding train will not be de-railed, so they simply dropped the sensing requirement for devices that use geolocation.

Sensing-only devices are still allowed, but only under very rigid technical constraints that will be hard for manufacturers to satisfy. Because database checking will usually be the sole feature for avoiding interference, the FCC promised a rigorous certification procedure to make sure devices handle this function properly. Again, no details.

The FCC struggled, with only limited success, to accommodate users of wireless microphones in broadcasting, theater, movie-making, sporting events, and public gathering places like churches and auditoriums. The FCC will reserve two TV channels in each geographic area for wireless microphones, which it thinks will accommodate 12-16 microphone voice channels. Some parts of the country will also have other channels closed to white space devices and available for wireless microphones. Large productions, though, often use 100 or more. Microphone operators may request to have specific events entered into the white space database, which should (if all goes according to plan, that is) automatically keep white space devices away. Requests to protect unlicensed microphones must show that the channels free of white space devices cannot do the job. These requests will be subject to public comment, which requires 30 days advance notice. Without a database entry, and in the absence of spectrum sensing, the microphones will have no protection against white space devices on the same channel. 

In the end, the FCC believes wireless microphones should move to more efficient digital technology. But it did not address the difficult engineering problems that so far have barred this option.

The question of using vacant TV channels for backhaul links in rural areas is deferred.

Read the FCC’s news release on the decision and the full text of the White Spaces order.

[Blogmeister's Note:  This post has been updated as of 9/24/10 to provide additional information culled from the full text of the Commission's white spaces order.]

The primary concern, of course, is interference to other spectrum users. Each unlicensed device constitutes a potential source of interference if its operator happens to turn it on in the wrong place at the wrong time. And because the device is unlicensed, neither the FCC nor the victim of the interference will have any easy way of identifying the source of the interference. 

The white space proceeding has thus been an effort to take advantage of the potential for wide-spread use of low-power, unlicensed devices on TV frequencies while protecting licensed users of those frequencies. Those licensed users include not only TV stations, but also wireless microphone users (a broad universe which includes not only TV and movie producers, but also churches, theaters and live music venues).

Back in 2002 the Commission kicked things off with a Notice of Inquiry relating to the possible use of portions of the TV band for unlicensed use. From that beginning, the Commission released a Notice of Proposed Rulemaking in 2004, which led to a First Report and Order in 2006, and then a Second Report and Order in 2008. The Commission’s deliberations were complicated by the fact that, throughout this time, the TV band was in the process of the digital transition, a process which wasn’t completed for full-power stations until June, 2009.

Meanwhile, a range of white space gadgets – now renamed “television band devices” (TVBDs) – was being developed by various proponents eager to get in on the ground floor of what many perceive to be a singular opportunity to create vast new and lucrative markets. In 2007, and again in 2008, the Commission tested out a number of prototype TVBDs in the field and in its lab. The goal was to see whether the devices could provide protection against interference.

The FCC advanced two basic approaches to interference protection. In one, the TVBD is capable of: (a) accurately identifying its own location (through GPS technology); and (b) cross-checking that location against a database of existing licensed spectrum users in that area. That cross-check process would preclude use of any frequency already licensed for use within a certain area. In the second approach, the TVBD is equipped with sensing capability allowing it to “sniff out” other uses of the TV band and automatically switch channels to avoid interference to such other uses.

Through several rounds of testing – testing which did not necessarily duplicate all real-world conditions – the “sniff out” technology did not fare particularly well. Still, the FCC concluded that the results demonstrated a “proof of concept”. In 2008 it adopted rules to authorize TVBDs under certain conditions. (As my colleague Mitchell Lazarus observed at the time, the Wright Brothers at Kitty Hawk also demonstrated the feasibility of powered, heavier-than-air, flight as a “proof of concept”, but it still took 30 more years for the check-in lines to form at O’Hare.)

The 2008 rules did not give an unequivocal green light to TVBDs, however. The rules imposed three constraints:

• Operation is flatly prohibited on certain channels, and in certain areas, and on some channels in some areas.
• Every TVBD must know where it is, and have a current list of open channels for that location, or else it must operate under the direct control of a TVBD having that information. (Manufacturers can bypass this rule by undertaking extra procedures; see below).
• Every TVBD must sense the spectrum for incumbents on the channel it is using.

The details were stringent. Device locations, for example, must be determined to within 50 meters, a requirement that only GPS can fulfill today. The catalog of available channels must be updated at least daily. Sensing must achieve a detection level of -114 dBm, equivalent to 0.004 trillionths of a watt – yet even this sensitivity could miss TV signals that are viewable with a good outdoor antenna.

Under the rules, TVBDs must be certified by the FCC before they can be marketed. To protect incumbent users of the TV band from millions of interference-causing renegade TVBDs, the Commission added extraordinary steps to the usual certification process. First, the manufacturer must test the device itself. Next, the Commission re-runs the tests, both in its lab and then again on the mean streets of America. Finally, the Commission seeks public comment on the TVBDs’ test results.  Only after the successful conclusion of this stringent certification process would the Commission permit the importation and sale of any TVBD.

While the rules were technically adopted in 2008, they have not, for the most part, yet taken effect.   Approval by the Office of Management and Budget is necessary before crucial elements of the new rules can be implemented. (Those crucial elements include the rules concerning the database of occupied channels and the procedures for approving sensing-only devices.) Also, to the extent that the protection system requires the existence of a comprehensive, accurate, frequently-updated database which TVBDs may check against, TVBDs can’t be rolled out until that database is in place. To date, that database is still on the drawing boards. (The Commission did invite proposals for the design and maintenance of such a database in November, 2009.)

Also, the Commission still has to resolve issues raised in 17 petitions seeking reconsideration of the 2008 rules. The petitioners include:

• broadcast-related interests who seek a return to square one, arguing that the record does not support any unlicensed devices on TV channels;
• LPTV stations that lack needed protection for still-ongoing analog operations;
• petitioners objecting to a great many specific technical rules, including emission limits, separation requirements, sensing levels, power levels for first-adjacent channels, special procedures for sensing-only devices, and fixed base station heights, among others;
• cable satellite TV providers that claim inadequate protection for headends and cable-ready TV sets; and
• those presenting other issues: real-time operation of the database that catalogs available TV channels; database information security and registration requirements; pending negotiations with the Mexican government; rejected proposals, such as licensed use of white space frequencies; and too many more to list here.

Additionally, an appeal of the rules is pending in the U.S. Court of Appeals for the D.C. Circuit, although that has been held in abeyance while the FCC works through the reconsiderations and database development.

So when the Commission rolls up its sleeves to tackle the white space proceeding at its September 23 meeting, it will theoretically be trying to (a) resolve the pending petitions for reconsideration and (b) get the database set up. 

While those are already complex problems, they are further complicated by the brooding omnipresence that casts its shadow on everything the Commission does these days: the National Broadband Plan (NBP). The NBP expressly recommended that the Commission move forward with the white-spaces proceeding. That makes sense, since the NBP is all about increasing the efficient use of spectrum while encouraging technological innovation. 

But the NBP also entails the possibility – if not substantial likelihood – that the FCC may reallocate up to 120 MHz of TV spectrum for broadband use. That in turn would require “repacking” of the remaining TV spectrum by moving existing TV stations from the reallocated spectrum to channels in the remaining TV band. The repacking process would almost certainly increase congestion in the TV band, which could reduce available white space and thus complicate the roll-out of white space devices.

There is much at stake in the highly technical, highly contentious white space proceeding. The Commission has thus far struggled to strike a workable balance between protection of incumbent licensees and the desire to unleash innovative TVBD services. Presumably that struggle continues.   Just among ourselves, we think it might even continue beyond the September 23 meeting.

Each applicant must provide: 

• A demonstration of sufficient technical expertise;
• A demonstration of a viable business plan;
• The scope of the database functions it plans to perform;
• If the plan involves multiple databases, a description of how data will be synchronized;
• If the plan involves multiple entities, information on other involved entities and their business relationship with the applicant; and
• A description of the methods (e.g., interfaces, protocols) to be used by devices to communicate with the database, including any security measures.

Proposals must be submitted by January 4, 2010. They will presumably be made available for review by the public soon thereafter, because the Commission has also invited comments (due February 3, 2010) and replies (due February 18, 2010) on the proposals. Sharpen those crayons, because we expect that neatness will count.

Initially, both fixed and portable devices must rely on geolocation and a database of existing users. Portable devices that do not themselves incorporate geolocation and a user database may not operate unless they establish a link with, and are assigned a channel by, a base station that does use geolocation and a database. Both broadcast stations and venues where large numbers of wireless microphones are in use may be registered in the database. All white space devices must also incorporate spectrum-sensing, which is intended to avoid interference to other wireless microphones and broadcast signals that may not be registered in the database.

Fixed devices will be registered in a database. Portable devices will not be registered. No provision was made for any licensed devices, including backhaul point-to-point links in rural areas, but a notice of inquiry will be issued to explore higher powered rural operations.

Operation near cable television head-ends will be restricted. Other than that, all TV channels in the range 2-51 will be open to these new devices. VHF channels were not withheld, nor were Channels 14-20, which are used for public safety operations in major cities.

In the future, the FCC will allow unlicensed devices that select operating channels based on only spectrum-sensing. These devices must be tested and certified by the FCC Laboratory before marketing and must prove that they avoid interference to existing operations. Applications for equipment certification will be placed in public notice. In what appears to be a first for the FCC, the testing of these devices will be open to the public, and public comment on test results will be permitted.

The commissioners did not all agree that devices that only sense existing spectrum use are ready for mass marketing at this time. At least one also felt that white space devices would not be able to operate successfully at all in the largest cities. 

Some commissioners stressed that white space devices would remain secondary to television broadcast services, but it is not clear at this point that the intent of some white space proponents to achieve stronger spectrum rights was completely rejected.

While prospective manufacturers of white space devices assured the FCC that it was in their self-interest to avoid interference, the FCC did not establish any expedited procedures for dealing with interference complaints, nor did it provide for recall of defective products and forfeitures for causing interference.

It is not clear what will happen now other than almost certain skirmishes as white space hardware is submitted for FCC Laboratory testing. Dealing with any problems that arise will be left to a Commission that will almost surely have a new chairman and perhaps other new commissioners.