Congress to FCC: Now, Let's Do Something About 10 GHz

Some familiar faces take an alternative approach to trying to get the FCC to open up spectrum for wireless broadband.

Recently, we reported on bills introduced – actually, re-introduced, since proposals with the same language had died during the preceding Congressional session – by several reasonably high-profile Senators and Representatives. Their goal: requiring the FCC to study the possible use of the 5.9 GHz band for Wi-Fi use. Now the same crew is at it again, but they’re using a somewhat gentler approach. Rather than looking to require the Commission to do anything, this time they’re simply offering their support for the FCC’s efforts to “free up additional spectrum for wireless broadband use”. They don’t identify precisely which “efforts” they’re supporting, but they do happen to suggest that the Commission “explore potential sharing opportunities within the 10 GHz band”.

While the letter doesn’t say how this Congressional team happened to hit on the 10 GHz band, we’re guessing it wasn’t an accident.

As it turns out, back in May 2013, a company called Mimosa Networks filed a petition with the FCC asking it to start a rulemaking proceeding to make available additional spectrum for wireless broadband services. Where would that spectrum come from? Why, the 10.0-10.5 GHz band, of course. Mimosa suggested that additional spectrum is needed for wireless internet service providers (sometimes called “WISPs”) to provide long distance, high capacity links. These “backhaul” links form the middle portion of our internet connections, connecting points that collect “last mile” end user information to the Internet “backbone.” Backhaul is often transmitted over fiber (or legacy copper), but also it’s also transmitted wirelessly when the alternatives don’t make sense – for example, in rural areas, where wireless facilities are quicker and cheaper than fiber.

In its petition Mimosa asks for a fairly aggressive power level (55 dBW). That’s based on similar power levels (specified in Part 101 of the rules) for operations in the 10.7-11.7 GHz band. Mimosa also helpfully suggests ways to mitigate interference to radar uses – specifically, a method referred to as Dynamic Frequency Selection, which means that, before transmitting, the broadband system would have to first listen for the signals from other users.

The bad news for Mimosa is that the 10 GHz band is currently used by amateur radio (HAM) operators and amateur satellite services (amateur communications conducted via satellite). (It’s also used for both government and commercial radiolocation (a/k/a radar).) Longtime CommLawBlog readers will recall that amateur operators can be aggressive and persistent when it comes to protecting the spectrum turf they call home. Predictably, the amateurs opposed Mimosa’s proposal in full force. Whether or not as a result of that opposition, the Commission has taken no action on the proposal since the last comment was filed nine months ago.

Against that backdrop, what should arrive but the recent letter to Chairman Wheeler from six members of Congress, encouraging the FCC to be sure to check out the 10 GHz band as a possible means of “expanding Wi-Fi capabilities to bring Internet access to more Americans.” (For the record, the letter was signed by Senators Booker and Rubio and Representatives Matsui, Guthrie, Eshoo and Latta.) While their letter falls short of the considerably more aggressive approach that these Congresspeople took with respect to the 5.9 GHz band – i.e., introducing legislation that would require the FCC should to consider Wi-Fi sharing in that band – nonetheless a pattern appears to be emerging: when the private sectors says that more spectrum is needed for Wi-Fi, Congress will come knocking on the FCC’s door if the FCC doesn’t move quickly enough. It remains to be seen exactly how the Commission will react to this unsolicited advice from Congress. Check back here for updates.

Congress Steps Back Into Wi-Fi-Related Spectrum Fight

New bills would force the FCC to examine, on an expedited basis, possible Wi-Fi and other unlicensed use of 5.9 GHz band.

As a general rule, the FCC is in the driver’s seat when it comes to spectrum management in the U.S. But that doesn’t mean that Congress can’t, and won’t, occasionally engage in some aggressive backseat driving. And so it is that several members of Congress have reintroduced legislation – S.424 in the Senate, H.R.821 in the House – strongly suggesting the direction the FCC should take with respect to the 5.9 GHz band (i.e., 5850-5925 MHz). The bills would require the FCC to “provide additional unlicensed spectrum in the [5.9 GHz band] under technical rules suitable for the widespread commercial development of unlicensed operations in the band”, provided that the Commission first determines that such use won’t cause harmful interference to existing licensees of that band. The bills also provide detailed specifications, and an accelerated timetable, governing how the FCC must make that determination.

If this sounds familiar, that’s probably because an essentially identical proposal was introduced last year. No action was taken on it then, so it’s been reintroduced.

Under the detailed schedule set out in the bills, the FCC would have to:

  • solicit comments on proposals for “interference-mitigation” techniques and technologies (including potential rechannelization) that could permit the band to accommodate both existing users and “widespread commercial unlicensed operations”. For purposes of the bills, that latter term – which in recent years has been legislative shorthand for “Wi-Fi” – would include outdoor operations with at least one watt of transmitter output power, but would not require use of Dynamic Frequency Selection (i.e., the process in which the device automatically looks for, and then transmits on, available channels);
  • develop and implement a test plan for Wi-Fi use of the 5.9 GHz band. This would be done in cooperation with the National Telecommunications and Information Administration (NTIA) and the Department of Transportation (DOT). The bills helpfully provide a list of eight specific considerations that the FCC would have to address in this test process; and
  • based on the test results, adopt rules “suitable for the widespread commercial deployment” of Wi-Fi in the 5.9 GHz band (if the tests establish that such rules could be crafted so as not to cause interference to existing licensees in the band).

The bills lay out specific – and fast – time frames for each of these steps. The Commission would have to: invite preliminary comments within three months of the statute’s enactment; complete the test plan within six months of enactment; wrap up the tests within 15 months; and then adopt appropriate rules in light of the test results within 18 months of enactment.

The proposal, if adopted, would put Congress at odds with the automotive industry, which for more than a decade has been working to develop smart car technology (sometimes referred to broadly as Intelligent Transport). That technology would use the same 5.9 GHz spectrum band for “dedicated short range communications service” (DSRC), allowing cars to communicate wirelessly to prevent accidents. The auto industry and the DOT have been attempting to develop standards for vehicle-to-vehicle (V2V), or connected cars, technology. During the past few years, the DOT has been involved in demonstration projects to test V2V systems. Since it hasn’t yet adopted any regulations governing the commercial use of this technology, it’s safe to say that actual deployment will not be coming to your car anytime soon.

Intelligent Transport proponents are concerned that shared use of the 5.9 GHz band – particularly with Wi-Fi operations – could reduce the effectiveness of V2V operations. The notion of such sharing has been percolating at the FCC for at least a couple of years. The automotive industry, with DOT’s political support, has been fighting the idea of sharing the band with other potential users, including Wi-Fi, whom they view as a threat to V2V operations.

In contrast, Commissioners Michael O'Rielly and Jessica Rosenworcel recently put out an FCC blog post advocating for band-sharing between the two uses. As they see it, the safety considerations underlying V2V/DSRC operations should continue to be permitted and protected. But during the 15 years since such operations were first accorded their own spectrum, the DSRC has developed “slowly” while the demand for Wi-Fi and other unlicensed devices has “exploded”. Accordingly, Rosenworcel and O’Rielly are ready for “a compromise that allows both unlicensed and DSRC use” in the 5.9 GHz band.

Senators Rubio and Booker are sponsoring S.424 in the Senate, while Representatives Eshoo, Matsui and Latta are sponsoring H.R.821 in the House. These are not political unknowns, which ordinarily might mean that their legislation should get some consideration in Congress – although last year’s unsuccessful bills had the same sponsors. But even if this year’s model of the Wi-Fi Innovation Act, like its predecessor, fails to make it to the finish line, the fact that Rosenworcel and O’Rielly appear to be in agreement is, in and of itself, a noteworthy development. The votes in a number of recent high-profile Commission decisions have broken down along strict party lines. But since Rosenworcel is a Democrat and O’Rielly is a Republican, their common openness to the notion of some compromise that would give Wi-Fi access to the 5.9 GHz band suggests that there is likely no political roadblock at the FCC.

Marriott Checks Out of Declaratory Ruling/Rulemaking Proceeding

Prudent network management or Wi-Fi jamming? The question has been taken off the table … for now.

Last year we reported on a couple of interactions between the FCC and the well-known hotelier, the Marriott Corporation. The news started inauspiciously for Marriott when the Commission wrapped up an investigation (started in 2013) by spanking Marriott with a $600,000 civil penalty. The FCC determined that Marriott had used “containment capability” to prevent guests at the Gaylord Opryland (run by Marriott) from by-passing the hotel’s Wi-Fi system in favor of their own DIY hotspots.

Presumably prodded by that investigation, Marriott (joined by some hotel friends) filed a request for declaratory ruling (or, in the alternative, for rulemaking), essentially asking for a determination that what Marriott had done really was OK. (Specifically, Marriott was asking the Commission to hold that a network operator may “mitigate” threats to the operator’s network, even when doing so results in interference to guests’ WiFi hotspots.)

The FCC dutifully announced the filing of the request for declaratory ruling and invited comments about it. But a month later, it also issued an “Enforcement Advisory” alerting one and all to the fact that preventing one’s Wi-Fi enabled devices from connecting to the Internet constitutes prohibited “jamming”. And a month later, out came another “Enforcement Advisory”. This one was even more pointed. Referring to “a disturbing trend in which hotels and other commercial establishments block wireless consumers from using their own personal Wi-Fi hotspots on the commercial establishment’s premises”, the advisory declared flatly that “Wi-Fi blocking violates Section 333 of the Communications Act, as amended.”

Not surprisingly, Marriott (and the other requesters) have now withdrawn their request for declaratory ruling (and the FCC has lost no time in officially bidding it adieu).

In their withdrawal letter, Marriott et al. strongly deny the Commission’s claim that hotels intentionally messed with private Wi-Fi hotspots in order to force consumers to use the hotels’ pricier Wi-Fi network. And they also note that no less an authority than the Department of Homeland Security, in conjunction with other federal agencies, had issued a technical reference in which it (a) “require[d] that internal WLANs operated by federal agencies use wireless intrusion detection and prevention systems” and (b) recommended the use of such systems by authorized visitor WLANs.” In other words, in Marriott’s view it was merely implementing cautious guidance from DHS, not illegally jamming anything.

Still, the handwriting on the Portals walls was pretty darn clear, particularly in the most recent “Enforcement Advisory”. So rather than expect that the FCC might be persuaded otherwise, it makes sense that Marriott would look for other ways to make its case. Officially, Marriott pulled the plug “in order to more quickly and comprehensively address some of the pressing security questions raised by Petitioners and to focus efforts on establishing the American Hotel & Lodging Association Cybersecurity Task Force.” Marriott describes the Task Force as “an industry task force that will partner with experts and leaders in the technology sector to find and implement the most effective market-based solutions available to tackle growing cyber threats.”

While the withdrawal of the Marriott request defers resolution of the issues raised in that request, our hunch is that those issues haven’t gone away by any means. The withdrawal of the request may just be a tactical retreat; it’s probably not the end of the war.

FCC Reminder (Redux): Cell Phone Jammers Are STILL Illegal

Wi-Fi jammers, too!

Having recently spanked Marriott for $600K for interrupting private Wi-Fi use at one of its hotel properties – concern about which presumably prompted Marriott to seek formal guidance about just how far they can go in managing Wi-Fi use at their venues – the Commission has issued another of its ever-popular “Enforcement Advisories” warning against the use of jammers to interfere with cellphone, Wi-Fi or GPS devices. (Similar advisories were issued in 1999, 2005, 2011 and 2012, along with Spanish and Mandarin versions of the 2012 notice.)

The use of jammers is, of course, a very tempting way to control disruptive uses of wireless devices. Prison officials have long wanted to use jammers in prisons, where illegal cellphones are in widespread use by (among others) cell-bound prisoners managing illegal enterprises on the outside. And we have previously reported about one enterprising commuter in Philadelphia who used a pocket-sized jamming device when fellow bus passengers disturbed his ride by talking on their phones too loudly.

There are many other venues where a jammer would come in handy for the average Joe: theaters and concert halls, for instance, where standard pleas at the beginning of a performance to turn cellphones off are often ignored, leading to an annoying cellphone jingle in the middle of a performance. And how about restaurants, which are noisy enough without the person at the next table yapping away on the phone?  

But guess what?

No matter how virtuous their purpose may be, jammers are illegal for just about everybody, including both private person and state and local law enforcement officials. (One exception: certain authorized federal government officials – why should the feds have to follow everyone else’s rules?)

The problem with jammers is that, whatever their potential benefits, jammers’ signals don’t discriminate. Sure, they block the loudmouth next to you at the movies, but they can cause injury or death by blocking a call to 9-1-1 or other source of emergency assistance. They can cause serious inconvenience by blocking critical calls to family members or businesses. They can cause a GPS user to get lost or even to come into harm’s way. They can prevent a first responder from locating the source of an emergency call and thus thwart a rescue.

It is illegal not only to operate jammers in the United States but also to import them (including private online purchases of equipment that is shipped to a U.S. address from anywhere in the world), to sell them, and to advertise them online or in stores. Fines can be up to $122,500 for each violation, and the FCC has indeed levied serious fines against sellers of jammers.

The extent to which the FCC will be successful in clamping down on jammers remains to be seen. But it will also be interesting to see how broadly the FCC will interpret the term “jamming,” particularly in light of the Marriott case. Where the Commission’s 2011 public notice referred only to devices that “intentionally block, jam or interfere with” Wi-Fi, the new public notice (like its 2012 precursor) refers to to jammers that “prevent your Wi-Fi enabled devices from connecting to the Internet.” Will the FCC interpret “jamming” only as the transmission of radio signals that cause interference, or will it broaden the concept of illegal jamming to include anything that prevents or impairs, in any manner, the functioning of a radio-based device? 

And if the FCC goes too far, will someone jam their efforts in court? Stay tuned to for further developments.

Marriott Wants FCC Guidance on How Far Venues Can Go to Control Their Wi-Fi Networks

Petition for rulemaking follows $600,000 consent decree. Hotels, convention centers, universities, hospitals among those potentially affected.

Last month we reported that the FCC had whacked Marriott Corporation for a cool $600,000 for messing with guests’ Wi-Fi hotspots. (The hotelier had prevented guests at its Opryland resort from using their own hotspots by transmitting disabling signals to private hotspots, forcing them to pay what the FCC felt were exorbitant rates for the resort’s own Wi-Fi service.) The FCC’s theory was that Marriott was violating Section 333 of the Communications Act, which bars interference with lawful communications.

While Marriott appeared to have accepted its come-uppance willingly (by signing onto a Consent Decree), it turns out there was more to the story. While the consent decree was being negotiated, Marriott mustered some reinforcements and took the offensive. Last August, joined by the American Hospitality and Lodging Association and Ryman Hospital Properties, Marriott filed a Petition for Declaratory Ruling or, in the Alternative, for Rulemaking asking the FCC to clarify exactly what operators of large venues may do to protect the security and quality of their own Wi-Fi networks. The petition was filed on August 25, 2014, but it took the FCC nearly three months to invite preliminary comments on it. If you’ve got something to say about this, you’ve got until December 19, 2014 to do so.

The petition raises all kinds of alarms about what will happen if the FCC decides that unlimited operation of private Wi-Fi hotspots must be permitted, even on private property. For example, Bad Guys could set up a private hotspot with the same SSID (network name) used by a hotel network. With that, they could grab traffic from hotel guests and exhibitors who think, wrongly, that they’re attaching to the hotel’s network. From there, it’s a snap for the Bad Guys to snag commercial information, including credit card numbers.

And even if all private guest Wi-Fi systems are on the up-and-up, too many such systems can overload the spectrum at the venue. (Don’t forget, the most commonly used Wi-Fi band – 2.4 GHz – has only three non-overlapping channels normally available for Wi-Fi traffic.) Overloads mean degraded quality of service that the venue can provide to exhibitors and guests, generating demands for refunds of Internet access fees.

To address these various problems, Marriott and its friends commonly deploy sophisticated and expensive Wi-Fi network management systems that search for unauthorized or excessive uses of a network. When such uses are detected, the systems send codes disabling them. The signals technically don’t “interfere” with guest Wi-Fi signals – that is, they don’t “jam” any radio signals, which would obviously be illegal. Instead, they simply send management commands that keep unwanted systems from accessing the venue’s own system.

That’s the good news. The bad news is that the disabling management commands also keep the unwanted private systems from functioning independently, even if those systems don’t try to interconnect with or slow down the venue’s system.

The petitioners, of course, have a point: they want to be able to manage the quantity and quality of traffic on systems. Everyone does it, including a whole bunch of universities which the petitioners helpfully list in an appendix to the petition. The universities manage their networks every day, cramming down data speeds for students who violate university restrictions on total data use, streaming movies, or whatever rules each campus may promulgate. As the petitioners see it, if we venues can’t put a lid on both malicious and excessive use, the resulting chaos will upset users of our systems to the point where we may have to forbid our guests from bringing private Wi-Fi equipment on to our premises at all – an admittedly tricky business when Wi-Fi hotpot capability is built into cellphones. The message to the FCC is clear: if you tell us that we can’t manage the systems that people use on our premises, we will keep the equipment out altogether. They presumably figure that such a prohibition is beyond the FCC’s say-so because the FCC’s jurisdiction is limited to transmission of radio signals and does not include a property owner’s limiting possession of the equipment in the first place. 

The petition doesn’t mention whether the FCC has jurisdiction to regulate the prices at which access to Wi-Fi service can be sold at major venues. It also doesn’t mention the FCC’s displeasure, expressed in the Marriott consent decree, about rates of up to $1,000 a day. The petitioners understandably try to stay away from such things, noting that they aren’t asking for the right to regulate user content (the “net neutrality” hot potato) or to prevent anyone from communicating with destinations of his or her choice.

Wi-Fi networks at large venues cost a bundle to install, and costs must be recovered. But high pricing is usually what drives users to set up private hotspots in the first place, even if those private devices tend to be less reliable than the venue’s network.

If push comes to shove, the legal war over regulating possession vs. operation of Wi-Fi equipment, as well as who has jurisdiction over venue Wi-Fi pricing, will likely keep the legal community busy for quite a while.

Again, you’ve got an opportunity to join the debate at the earliest stages. The deadline for preliminary comments is December 19, 2014.

Marriott Whacked for $600,000 for War on Rogue Wi-Fi Hotspots

Enforcement Bureau stretches meaning of “cause interference to” in order to reach the right result.

The Enforcement Bureau has struck a blow for those who prefer to use smartphones to set up their own personal mobile hotspots when they’re on the go – thereby avoiding the pricey wireless Internet access offered by various places, like hotels. In an Order and related Consent Decree, the Bureau has spanked the Marriott Corporation with a $600,000 “civil penalty” for using “containment capability” to prevent guests at the Gaylord Opryland (run by Marriott) from by-passing the hotel’s Wi-Fi system in favor of their own DIY hotspots.

To get to that result, though, the Bureau had to stretch the conventional definition of “interference to radio communications”.

It is, of course, well-known that many smartphone users can use their handsets as mobile hotspots to connect their laptops, tablets, and other Wi-Fi enabled devices to the Internet. When, as occasionally happens, that doesn’t work, users usually chalk it up to network congestion, or to the data network management practices (read – throttling) of their wireless carriers.

Turns out there may be other forces conspiring against the mobile hotspot user.

This came to light when an attendee of a function at the Gaylord Opryland found that he was inexplicably prevented from connecting to his personal access point, leaving him only one other Wi-Fi option: the Internet services provided on-site by Marriott, available at the whopping cost of $250 to $1,000 per wireless access point. Rather than shrugging this off and waiting until after the conference to get back online (or simply paying the freight and claiming it as a standard business expense), the individual filed a complaint with the FCC. The allegation: Marriott was using wireless technology to prevent guests from using their Wi-Fi mobile hotspots, forcing exhibitors or customers to use Marriott’s expensive Internet services rather than their own mobile connections for free.

The Bureau investigated and, wouldn’t you know, the allegation was true: Marriott had deployed a Wi-Fi monitoring system with a “containment capability”. When activated, the system could identify Wi-Fi access points that were not part of Marriott’s own Wi-Fi system (or otherwise authorized by Marriott). Such non-Marriott access points were dubbed “rogues”. When rogues were detected, the system sent “de-authorization” packets to the unauthorized access points, booting those users off their free connections and, presumably, forcing them to pony up for Marriott’s paid Internet access. 

In the Bureau’s view, this practice violated Section 333 of the Act, which provides that “No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this Act or operated by the United States Government”. While Marriott admitted that it had installed and operated the “containment capability” system, it stopped short of admitting that it had violated Section 333. Nevertheless, to put the whole affair behind it, Marriott agreed to pay the Feds $600,000 – and promised that it wouldn’t do it again and that it would adopt and implement a compliance plan.

(Historically, in consent decrees the required cash payment has usually been characterized as a “voluntary contribution”, in keeping with the fact that consent decrees are in the nature of a settlement in which the alleged wrong-doer is allowed to get off the hook without admitting that it in fact violated any rules. Recently, however, the Enforcement Bureau has declined to use the felicitous “voluntary contribution” language. Here, for example, the section of the consent decree imposing the payment obligation is titled “Civil Penalty”, even though that term does not appear elsewhere in the section. Word is that, in the Bureau’s view, this approach will prevent the payment/penalty from being deducted as a routine business expense in the payor’s tax return.)

While most of us (at least those of us not affiliated with Marriott) can probably agree that the Bureau reached the right result here, in order to get to that result the Bureau took a potentially ground-breaking approach.

As noted above, Section 333 of the Act – the section Marriott is accused of violating – prohibits “interference to any radio communications”. Normally, we think of “interference” as involving the transmission of a signal that prevents intelligible reception of some other authorized signal. Cell phone jamming is a classic example.

But in this case, Marriott arguably did not do that. While the facts described in the Consent Decree are less than detailed, it appears that Marriott’s system did not involve the transmission of radio signals that “interfered” with any other radio signals in the traditional sense. Rather, upon detection of a so-called “rogue” Wi-Fi access point, Marriott’s system simply sent out a signal that kicked the device off the network. That is more akin to hacking, i.e., sending undesirable messages rather than garbling desired content.

The Bureau’s seemingly new-found approach to Section 333 has implications in other contexts as well. We have previously blogged about the FCC’s NPRM to reduce the use of contraband cell phones in correctional institutions. There, the FCC proposed to allow prisons to prevent inmates from using cell phones through the use of “managed access systems” (MAS). These systems avoid running afoul of Section 333, and are different than traditional “jammers”, because they do not broadcast a signal that interfere with cell phone signals. If MAS don’t run afoul of Section 333 problem, it would seem that Marriott’s Wi-Fi de-authentication system arguably shouldn’t either.

Presumably, the Commission will have to address this conundrum eventually. For now, however, road warriors may wish to keep a copy of the Marriott Consent Decree handy to show hotel (or other venue) operators who may be using similar “containment capabilities” to discourage Wi-Fi access for which those operators cannot exact exorbitant charges.

(Note: Action under the Computer Fraud and Abuse Act (CFAA) for the hacking of mobile hotspots may have been a more appropriate enforcement vehicle than Section 333. However, since the CFAA is outside the FCC’s purview, the Enforcement Bureau couldn’t rely on it, and it had to make do with the regulatory options available to it.)

Update: Last Piece of U-NII Revisions Now In Effect

Back in April we reported on the adoption of new rules intended to beef up Wi-Fi operations across the country. All but one of those rules took effect in early June. The lone exception? Section 15.407(j), which had to be vetted by the Office of Management and Budget because it involves “information collections” that bring the hilariously-named Paperwork Reduction Act into play. According to a notice in the Federal Register, OMB signed off on that section late last month and now, thanks to that notice, Section 15.407(j) has taken effect as of September 24, 2014.

The newly effective rule requires people who deploy more than a thousand outdoor access points in the 5.15-5.25 GHz band to submit a letter to the FCC acknowledging they will have to take corrective action if they cause harmful interference to licensed services. Details are here.

Last Minute Update: Reply Deadline in 5.8 GHz U-NII Proceeding Extended

Last month we reported that the FCC had announced deadlines for oppositions and replies to several petitions for reconsideration that had been filed with respect to recent changes to the rules governing the 5 GHz unlicensed band. The FCC received over 100 filings. The deadline for replies was today, August 25. But, apparently, that didn’t provide quite enough time to plow through the pile of paper, at least according to the Association of Global Automakers, Inc.The Commission agreed, but not until the middle of the afternoon on August 25. This is good news for anybody who had been thinking about filing a reply, but just hadn’t gotten around to it yet. The rest of you may disregard the extension and continue your end-of-summer activities.

In any event, replies to the oppositions that were filed are now due on September 2, 2014. Have a great Labor Day weekend.

5.8 GHz U-NII Update: Dates Set for Responses to Recon Petitions

A couple of weeks ago we reported that several petitions for reconsideration had been filed relative to last April’s changes to the rules governing the 5 GHz unlicensed band. The FCC’s notice concerning those petitions has now made it into the Federal Register, which means that the deadlines for filing oppositions and replies have now been set. If you’re inclined to oppose any (or all) of the petitions, you’ve got until August 14, 2014. Replies will be due by August 25.

Parties Seek Reconsideration of 5.8 GHz Unlicensed Rules

Petitions address out-of-band emissions, set-top boxes, and vehicle communications.

We reported back in April on rule changes in the 5 GHz unlicensed band. Seven Petitions for Reconsideration recently appeared on public notice. Comments will be due 15 days after the public notice appears in the Federal Register, which will probably happen in late July or early August. Because the comment period will be short, we are giving you a heads-up now so you can begin to prepare your filings.

Four of the petitions question the stringent out-of-band emissions limits in the higher-powered 5.8 GHz region of the band. (The former rules had an option that entailed more lenient limits.) Wireless Internet Service Providers Association, JAB Wireless, and Cambium Networks Ltd., all seek a return to the earlier limits. Mimosa Networks, Inc. asks for limits that increase for more directional antennas. The Association of Global Automakers, Inc. has a different concern, that out-of-band emissions from 5.8 GHz might cause interference to vehicle operations in the immediately adjacent band at 5.9 GHz.

On other issues, Motorola requests that manufacture, marketing, sale, and importation under the old rules at 5.8 GHz be permitted to continue beyond the presently-allowed two years, preferably for five years, while EchoStar Technologies LLC wants a clarification relating to set-top boxes.

We will let you know the deadline for comments, as soon as the folks at the Federal Register tell us.

U-NII Waiver Requests Due in 30 Days

Waivers will allow retuning older U-NII-3 band systems to operate in U-NII-1.

The new U-NII rules, which take effect June 2, increase the power limits for the U-NII-1 band (5.15-5.25 GHz) and allow outdoor operation. Devices certified for the higher-powered U-NII-3 band (5.725-5.825 GHz) can be retuned for use in U-NII-1, but older systems may not comply with the new rules. Users or providers of those older systems have 30 days – until July 2 – to apply for waivers to allow their operation in U-NII-1. The FCC expects to quickly approve any such requests that seek to operate within the U-NII-1 band with up to 250 mW of conducted power and a PSD of 11 dBm/MHz with a 6 dBi gain antenna. This does not automatically rule out requests for higher power that come within the old rules for U-NII-3 (i.e., the ones that were in effect before June 2) or under the former version of Section 15.247, but the FCC may take longer to consider these.

If the above makes no sense to you, no need to worry – this post probably doesn’t affect you. Just ignore it.

Update: Effective Date Set for New Bulked-up Wi-Fi Rules

Early last month we reported on the adoption of new rules intended to beef up Wi-Fi operations across the country. Thanks to a notice in the Federal Register, we now know that those new rules (with one exception) will take effect on June 2, 2014. That starts a 12-month transition period (beginning with the June 2 effective date) by the end of which applications for certification of 5 GHz devices must meet the new and modified rules. IMPORTANT: Equipment manufacturers and operators who, prior to the effective date, installed outdoor U-NII-3 band systems that don’t comply with the new EIRP limits have until July 2, 2014 to file waiver requests. Not a big deal – the FCC has signaled it intends to grant these.

The one aspect of the new rules that is not subject to the effective date is Section 15.407(j). That section requires anybody “deploying an aggregate total of more than one thousand outdoor access points within the 5.15-5.25 GHz band” to first submit a letter to the Commission acknowledging that they will have to take corrective action should harmful interference to licensed services in the band occur. Since that submission requirement is, in the parlance of the hilariously-named Paperwork Reduction Act (PRA), an “information collection”, it must first be run past the Office of Management and Budget. That process, which generally takes four-six months or so, has also been initiated by a separate Federal Register notice.

PRA notices often contain curious nuggets, and this one is no exception. Again, Section 15.407(j) requires the preparation of a letter acknowledging responsibility for correcting interference. That’s what, maybe two-three paragraphs long, at most. And while we are loath to discourage the creative spirit, this type of letter appears ideal for a totally mechanistic, boilerplate approach. But the FCC’s “estimated time per response” for each respondent is a staggering 32 hours – that’s four full eight-hour days. Anyone charging by the hour for the preparation of such letters may want to make note of that estimate for future billing purposes.

Section 15.407(j) won’t take effect until OMB has signed off on it and the FCC has published a follow-up notice reporting on that. Check back here for updates.

Wi-Fi Bulks Up

New technical rules for unlicensed 5 GHz will yield better device performance.

We hear a lot about the shortage of spectrum that wireless carriers need for delivering silly cat videos to our smartphones and tablets. Also in short supply, although it gets less attention, is spectrum used by “unlicensed” services like Wi-Fi and Bluetooth. Access to this spectrum is free: no multi-billion-dollar auctions. The chips that use it are inexpensive, despite sometimes being housed in pricey tablets. There are no monthly charges. These frequency bands carry far more data every day than do carrier-provided 3G and 4G data services.

Older forms of Wi-Fi used only a band at 5.8 GHz band or, much more commonly, a band at 2.4 GHz. Some newer Wi-Fi protocols can use either or both, or other sub-bands in the 5 GHz range – whatever gives the best performance at a particular time and place. These technologies are amazingly good at working around interference, but still, can tolerate only so much congestion. A mathematical theorem sets the limit. As more of our devices send and receive more data, everybody’s performance gets worse.

A recent FCC order will help.

The oddly-named Unlicensed National Information Infrastructure (U-NII) section of the FCC rulebook governs four separate sub-bands, subject to differing technical rules, between 5.15 and (now) 5.85 GHz. The sub-bands are not fully contiguous, consisting of two contiguous pairs with a gap in between. A Notice of Proposed Rulemaking back in February 2013 suggested making the rules more uniform, filling in the missing gap, adding another sub-band at the top end, and reconciling inconsistencies with another rule covering some of the same frequencies. It also proposed to address problems of interference from some U-NII devices to airport weather radars.

The new order takes on some of these tasks, while leaving the addition of new bands for another day.

Most significant is an overhaul of the 5.15-5.25 GHz segment. Although this 100 MHz stretch is bigger than the main Wi-Fi band, operation within it has long been the 97-pound weakling of U-NII, limited to a paltry 50 milliwatts of transmitter power and restricted to indoor use. These constraints served to protect satellites receiving uplink signals on the same frequencies. But the FCC decided it could adequately protect the satellites even if it dropped the indoor-only requirement, raised the transmitter power limit 20-fold to a full one watt, and allowed antennas that can focus the power to an effective four watts. (More precisely, four watts is the maximum “effective isotropic radiated power,” or EIRP – a product of both the transmitter power and the antenna focus.) The new rules protect the satellites overhead by keeping signals close to the ground: outdoor, full-power operation is limited to fixed U-NII devices at angles below 30 degrees above the horizontal. At elevation angles above 30 degrees, where the signal might more plausibly be aimed toward a satellite, the EIRP cannot exceed 125 milliwatts.

The satellite licensee in the band remained concerned that large deployments of U-NII devices could still disrupt its operations. Interference from unlicensed devices, although rare, can be difficult to track down. Once the FCC certifies an unlicensed device as eligible for sale, it has no clue how many units are in operation or where they are. For this band, however, the FCC adopted an unusual rule: before deploying an aggregate of 1,000 access points, the company responsible must file a letter with the FCC acknowledging that it has to take corrective action if its devices cause interference. The names and address of companies filing these letters will at least give the FCC a starting point for investigation if interference does arise.

The uppermost U-NII sub-band, at 5.725-5.825 GHz, is where the big boys operate, allowed a full one watt of transmitter power and, with narrowly focused antennas, up to 200 watts EIRP. A different FCC rule regulated unlicensed “digital modulation” devices on almost the same frequencies – just a little wider, at 5.725-5.85 GHz. At one time the predecessor digital modulation rules and U-NII rules had significant differences, giving engineers good reasons for designing equipment to comply with one or the other. But over the years the two have gradually converged, to the point where almost-identical rules for almost-identical bands no longer make any sense. The FCC has now taken 5.725-5.85 GHz out of the digital modulation rules (two other bands remain), expanded the U-NII rules to the full 5.725-5.85 GHz, and tweaked the technical details to incorporate the best of both prior rule sections.

The most debated element of the consolidation concerned a digital modulation rule that allowed one watt of power into any antenna, no matter how narrowly focused, with no limit on the resulting EIRP. This allowed a well-designed system to cover several tens of miles in one hop: Wireless Internet service providers (WISPs) could bring the Internet to far-flung rural subscribers; oil companies could communicate with distant offshore oil platforms; wireless telephone companies could set up easy connections between network facilities and cell towers. All of these parties, and more, protested the FCC’s proposal to retain the U-NII limit of 200 watts EIRP. The FCC must have heard them, for the final package still has the former digital modulation rule permitting unlimited EIRP from a one-watt transmitter.

The biggest single problem in the U-NII band overall has been interference into the radars used at many airports to alert pilots to dangerous wind conditions. These Terminal Doppler Weather Radars (TDWRs) operate at 5.6-5.65 GHz, which is also part of a U-NII sub-band limited to 250 milliwatts transmitter power and one watt EIRP. A device in this sub-band (and one other) must “listen” for radar signals, and if hears them, switch to a frequency without those signals – a technology called “dynamic frequency selection” (DFS). After some fiddling with the details, DFS now works pretty well at protecting the radars.

Then why is there interference?

Many other countries besides the United States have U-NII-like services, but the precise frequency bands, power limits, etc. vary around the world. Rather than make different hardware separately designed to meet each country’s separate requirements, manufacturers prefer to make a single generic hardware radio capable of covering all bands globally, with software controls to maintain compliance with each separate country’s standards. Thus, a radio sold in the United States comes with software installed that keeps operation within U.S. specifications, activates DFS in bands that require it, and so on. But unscrupulous vendors sometimes modify the software to change the frequency, increase the power, or disable the DFS. The result is a noncompliant radio that might cover greater distances, but can cause interference to the radars. The FCC has uncovered several such instances, most recently this one.

The new rules require manufacturers to “take steps to prevent unauthorized software changes” that could take the radio out of compliance. (“Prevent” may be too strong a word; no system can be completely hack-proof.) Manufacturers can implement security any way they want – the FCC suggests a few methods, but does not prescribe any – and have to explain their approach in the certification application. The FCC promises guidance on what types of security measures work effectively, and the level of detail the FCC needs to evaluate the application.

It will be another 14 or 15 months before new devices must comply with the new rules, and perhaps another year or two after that before they become commonplace. But eventually your laptop, tablet, and smartphone Wi-Fi are all going to work better, even in places where many other devices are operating simultaneously. Enjoy those cat videos.

(FHH represents clients in this proceeding.)

FCC Proposal Intrudes on Unlicensed Spectrum

Mobile-satellite tower operations would share part of the same band used for Bluetooth, Wi-Fi, and many more unlicensed devices.

My colleague Don Evans ably posted an earlier report on the FCC’s proposal to allow Mobile-Satellite Service (MSS) tower-based operations to move into the adjacent 2.4 GHz unlicensed band – home to Bluetooth, the most-used forms of Wi-Fi, and countless other kinds of devices.

This follow-up post drills down on how the proposal might affect unlicensed users.

Globalstar has long been licensed for MSS operations at 2483.5-2495 MHz, immediately above the unlicensed band at 2400-2483.5 MHz. See the diagram. Until now, Globalstar’s license has allowed only satellite downlinks.

As Don explained, the FCC now proposes two changes. It would allow Globalstar to implement an Ancillary Terrestrial Component (ATC), which is FCC-speak for “towers.” Globalstar could communicate directly from towers to handsets – no satellite needed. And, for this application, it would expand the MSS/ATC band down into unlicensed spectrum by 10.5 MHz, to 2473 MHz. Unlicensed users could continue to operate alongside ATC.

Besides millions of unlicensed transmitters, the newly proposed ATC segment at 2473-2483.5 MHz also houses industrial, scientific and medical (ISM) equipment, radar, fixed point-to-point microwave, broadcast auxiliary, and private land mobile two-way radios. You would think the FCC might hesitate at trying to squeeze in yet another service. But the shortage of spectrum suitable for mobile data is so severe that the FCC cannot pass up any opportunity.

The diagram depicts the three most-used U.S. Wi-Fi channels, numbered 1, 6, and 11. Eight other channels overlap these (and each other), but see much less use. Note that U.S. Wi-Fi tops out at 2473 MHz. Globalstar cited this fact in requesting use of the band above 2473 MHz, suggesting that the above-and-below separation would limit the interference it causes to Wi-Fi.

The reason why Wi-Fi stays below 2473 MHz is relevant here. It turns on the out-of-band limits for the 2.4 GHz band. These are asymmetrical – relatively relaxed below 2400 MHz, and much more stringent above 2483.5 MHz. Wi-Fi transmitters can thus operate close to the lower edge of the band, but must stay well clear of the upper edge, in order to meet the tighter limits there. In practice the useful maximum frequency is around 2473 MHz. (One could design a Wi-Fi transmitter that operates higher in the band and still meets the out-of-band limits, but it would cost more and have a shorter battery life.)

Why the stringent limits above 2483.5 MHz? To protect the weak signals at 2483.5-2495 MHz coming down from Globalstar’s satellites! Are you following this? Wi-Fi avoids 2473-2483.5 MHz to protect Globalstar; then Globalstar says to the FCC, Hey, since Wi-Fi is not using that segment, why not give it to us?

Not to be outdone, Wi-Fi interests have made the complementary request: to relax the upper-edge out-of-band limits so that Wi-Fi can operate all the way up to 2483 MHz.

Bluetooth is another major 2.4 GHz unlicensed user. A Bluetooth transmitter “hops” among 80 possible channels ranging from 2400 up to 2480 MHz, each of them about 1 MHz wide. It has the capability of avoiding occupied frequencies, but FCC rules require the transmitter to always hop among at least 15 channels. In Wi-Fi-infested areas, Bluetooth – which operates at much lower power – does much of its hopping in the Wi-Fi-free zone above 2473 MHz. The prospect of ATC moving into those frequencies could spell trouble for Bluetooth users.

There is no requirement that unlicensed 2.4 GHz applications use the Wi-Fi or Bluetooth protocols. Countless thousands of consumer, commercial, and industrial devices use all manner of other modulations and waveforms, each with its own pattern of frequency occupancy, and its own potential susceptibility to the proposed ATC operations. Devices deliberately designed for the upper end of the band, so as to avoid interference from Wi-Fi, may be particularly vulnerable.

The FCC proposes a power limit for ATC that is identical to that for most 2.4 GHz unlicensed operations: 4 watts effective isotropic radiated power. The idea is to put ATC on an equal footing with unlicensed devices when competing to get a signal through. But it may not work that way in practice. Many unlicensed units operate at much lower power levels, often just a few tens of milliwatts. A full-power ATC facility may overpower nearby devices.

Worse, out-of-band emissions from ATC operations could threaten unlicensed operation far below 2473 MHz. The FCC proposes the same out-of-band limits for ATC that it applies to unlicensed-device emissions below 2400 MHz: namely, 20 dB below the highest in-band emission. This might seem even-handed. In practice, though, an ATC transmitter operating at the maximum allowable power can have out-of-band emissions comparable to the in-band power typically used by mobile Wi-Fi devices. The proposal to keep ATC frequencies separate from those used by Wi-Fi may not afford as much protection as Globalstar suggests.

Still, the proposed technical rules represent a creative effort on the FCC’s part. Rather than just open another band under MSS/ATC rules, the FCC is trying for a hybrid approach, requiring that ATC operate in the unlicensed band much like an unlicensed device. This particular band already hosts a massive and technologically sophisticated ecosystem. The FCC’s aim is to fold in another service with minimum disruption to those already in place.

The FCC even proposes to set aside a long-standing rule that prohibits unlicensed devices from causing interference to a licensed service. ATC is licensed. Yet an ATC handset user would have no interference protection from a nearby Wi-Fi device. We can hear gasps of disbelief from the cognoscenti. The doctrine that protects licensed users from unlicensed devices has been a mainstay of FCC regulation for decades. For the FCC to suggest anything different is about like the U.S. Congress condemning both the flag and motherhood. But the rule would be difficult to enforce, in this context, and its proposed inapplicability here will doubtless soften objections from unlicensed users.

The overall success of the FCC’s approach in practice will depend in large part on the power levels Globalstar chooses to deploy. With so much of our personal and business communication now dependent on Wi-Fi, Bluetooth, and other 2.4 GHz unlicensed technologies, there could be significant risks in going forward. We trust the FCC has evaluated them carefully, and we commend the agency for proposing a novel set of solutions.

To tell the FCC what you think, go to its electronic comment filing site and enter Proceeding Number 13-213. Comments are due on May 5, 2014, and replies on June 4.

Out for Comment: Globalstar Proposal to Expand ATC Operation

Shared use of adjacent 2473-2483.5 MHz unlicensed band could raise objections.

Last November, at the urging of Globalstar, Inc., the FCC proposed to modify the Ancillary Terrestrial Component (ATC) of the rules governing the Mobile-Satellite Service (MSS) system operating in the Big Low-Earth Orbit (LEO) S band. Now, after an inexplicable three-month delay, that proposal has made it into the Federal Register, so comment and reply comment deadlines have been set.

Globalstar is the licensee of a Big LEO S band MSS system. It proposes ATC use of its licensed 2483.5-2495 MHz spectrum for a low power broadband network. That is not especially controversial because use of satellite spectrum for ATC service has been approved by the FCC for more than a decade as a way of expanding the use of satellite spectrum for terrestrial communications while maintaining the primary usage for satellite service.

The quirk in Globalstar’s proposal is that it would incorporate the adjacent 2473-2483.5 MHz segment of the 2.4 GHz unlicensed band into its operation. While the 2.4 GHz unlicensed band as a whole is widely used for Wi-Fi and Bluetooth, this particular segment at the upper end is unused by standard Wi-Fi operations in the U.S. because of the need to protect Globalstar’s adjacent satellite operations. Globalstar figured it could appropriate, in a practical sense, that 11.5 MHz in order to give it an effective full 22 MHz of bandwidth for its terrestrial operations.

But there are some complications.

First, the FCC proposes to relieve Globalstar of some of the so-called “gating” requirements that have acted to limit the usefulness of satellite spectrum for terrestrial operations. Specifically, Globalstar would not have to provide dual-mode handsets capable of communicating with both the MSS network and the ATC. The requirement to have such handsets has been a major obstacle in developing a workable business plan since the satellite component adds considerably to the cost of the device and isn’t needed by the normal terrestrial customer. While Globalstar must maintain its status as a primarily satellite operation, the FCC indicated that that obligation could be met by virtue of Globalstar’s considerable satellite operations without the need for extensive additional showings.

(Interestingly, the approach taken by the FCC toward Globalstar differs from the more expansive approach toward DISH Network and its ATC authorizations. The FCC relieved DISH of any obligation to continue providing satellite service at all. To get to that result, the FCC changed the regulatory regime for the DISH spectrum from Part 25 of the FCC Regulations (satellite operations) to Part 27 (normal terrestrial wireless operations). DISH was also relieved of all gating requirements, permitting it to use its spectrum in all respects as terrestrial – a much higher value use. By contrast, the FCC rejected Globalstar’s request for Part 27 treatment akin to DISH’s and instead chained Globalstar firmly to its Part 25 satellite status. That disparate treatment is curious in view of the National Broadband Plan’s policy directive to maximize use of satellite spectrum for terrestrial purposes.)

Second, Globalstar’s proposed use of the unlicensed spectrum has been viewed with alarm by other users of that band, particularly the Bluetooth community. It turns out that, precisely because the 2973-2983.5 band is not used for Wi-Fi, it is much more available, and more widely used, for Bluetooth connectivity. Bluetooth manufacturers and users are concerned that the Globalstar’s use would adversely affect their own operations. According to Globalstar, because of the frequency-hopping characteristic of Bluetooth operation, there would be no adverse effects. This is one of the most important issues the FCC will have to sort out, with the results of tests conducted by Globalstar figuring in the analysis.

Third, the Broadcast Auxiliary Service (BAS) is a long time user of the same 2483.5-2495 band licensed to Globalstar. This overlapping use of the same spectrum has not heretofore been a problem since the relatively few BAS stations in the band could be coordinated with Globalstar’s satellite operations to avoid interference. Wide scale use of this same band by Globalstar for its terrestrial operations would be a different story. The FCC must therefore consider whether to re-farm the BAS stations to a different frequency band – probably at Globalstar’s expense – or come up with some other way to avoid interference.

Finally, the plan to incorporate the 2473-2483.5 MHz unlicensed band into Globalstar’s managed network raises the question of how to handle the equipment that would be operating in the unlicensed band. Such equipment has been certified for operation under Part 15 (unlicensed operation) and has generally been programmed not to operate on the band that Globalstar needs it to be on. Globalstar indicates that the equipment in the field can be rendered usable in the desired band by software upgrades and can then be controlled by equipment certified for Globalstar’s use. Under current FCC procedures, re-certification of the existing equipment would be required before it could be used as proposed. Exactly how to accomplish the certification process with a minimum of re-certification applications by numerous manufacturers is another issue that will have to be addressed.

So while Globalstar’s proposal has now taken a major step forward, a number of technical and regulatory hurdles remain to be resolved before its ambitious plans can come to fruition. The problems do not seem insurmountable at this point, but the comments submitted in the docket will flesh out the situation. Comments from interested parties are due no later than May 5, 2014, with replies due June 4. Comments may be submitted electronically: Go to the FCC’s ECFS filing site and file them under Proceeding Number 13-213.

[Disclosure: Blogger Don Evans has a small ownership interest in Globalstar.]

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

Google v. FCC: And the Winner is [REDACTED].

In Rorschach-like NAL, FCC proposes whopping $25,000 (ouch!) fine for impeding an investigation into the Google Wi-Spy controversy.

In a Notice of Apparent Liability (NAL), the FCC has proposed to fine Google. Not, mind you, for the alleged misconduct the Commission first set out to investigate. Rather, Google would be fined for allegedly impeding that investigation – even though the FCC now pretty much concedes that no violation took place. But it’s hard to tell exactly what happened, because large portions of the FCC’s published order are redacted. One thing that wasn’t redacted: the proposed fine. That would be the princely sum of $25,000.

This much is known: between 2007-2010, Google collected Wi-Fi network data all over the world in support of its Street View project. In addition to providing totally bitchin’ online photos of just about anywhere in the world, the Street View project collected network data to support various location-based services. But in collecting those data about available networks here, there and everywhere – including home wireless networks – Google also happened to collect the actual content of various unencrypted communications carried over these networks (i.e., “payload” data) – things like e-mails, text messages, passwords, Internet usage history, and other potentially sensitive personal information.

When word of this surfaced, governments everywhere – federal, state, foreign – launched (with considerable fanfare) investigations, on the theory that the unauthorized collection of that kind of private data couldn’t possibly have been legal.

Our federal government sicced an agency tag-team on Google. First, the Federal Trade Commission (FTC) took a close look at Google’s activities, but closed down its investigation without finding any problems.  The FTC came away convinced that Google didn’t plan to use any of the payload data, would be deleting that data pronto, and was taking steps to improve “its internal processes”. Nothing to look at here, folks.  Show’s over. Just move along.

Then the FCC jumped in.

Within a month of the FTC’s exit, the FCC had fired off a Letter of Inquiry (LOI) in an effort to figure out whether Google’s data collections had broken the law. The law in this case is Section 705(a) of the Communications Act (which, oddly enough, is codified as 47 U.S.C. §605(a)). In relevant part (that would be the second and third sentences of Subsection 605(a)(6)), it bars the unauthorized interception, followed by divulgence, publication or use, of certain radio communications. 

The LOI sought vast amounts of information and documents about Google’s Wi-Fi data collection activities.  Google reacted like any public-spirited organization with nothing to hide would – by cooperating fully, opening its files to the FCC and happily walking the agency through the complexities of its data-collection process . . . NOT. Au contraire, Google mounted an impressive effort – some might call it stonewalling – to keep the FCC in the dark.

The LOI was designed to bring in huge numbers of documents – including internal emails relating to the data collection process – so the Commission was doubtless disappointed with what Google produced: a very small handful of documents, a few apparently unhelpful interviews, and no emails at all. The paucity of materials presumably stemmed, at least in part, from Google’s somewhat circumscribed approach to the LOI. According to Google, it had “not undertaken a comprehensive review of email or other communications” because doing so “would be a time-consuming and burdensome task”. (Having responded to our share of LOI’s, we are sympathetic to Google’s concerns here; we only wish that we had thought to raise the “Gee, that’s a lot of work – we think we’ll pass” defense.) 

Google also chose not to identify any of the individuals responsible for authorizing its collection of Wi-Fi data or any employees who had reviewed or analyzed the Wi-Fi communications collected. Consistent with this insistence on anonymity, it also redacted the names of its engineers from the limited documents that were produced.  Google claimed that identifying its employees “at this stage serves no useful purpose with respect to whether the facts and circumstances give rise to a violation”.

The FCC sleuths were able to identify the engineer who developed the software code that Google used to collect and store payload data. In the NAL he is referred to as “Engineer Doe”. We’re guessing that’s not his real name . . . not that knowing his real name would help anything. According to the NAL, Engineer Doe lawyered up and took the Fifth, effectively slamming the door on that potentially useful source of information.

And the icing on the cake: Google declined for nearly the entire length of the investigation to provide a verification, under penalty of perjury, from any corporate official with either first-hand involvement in the data collection effort or personal knowledge of the information contained Google’s response. Such a verification of the accuracy of the response was specifically required by the LOI and is SOP in dealing with the Commission.

Undeterred (and perhaps nonplussed), the FCC issued a supplemental LOI, but that didn’t result in more useful intel from Google. That was followed by a demand letter making sure that Google knew that the FCC was really, really serious – it ordered Google to provide complete responses to earlier requests and requested additional information. Same non-result. And then a final supplemental LOI. Ditto. Throughout the process, the Bureau was also in touch with Google by phone and in person. All to no avail.

So despite the fact that the Commission dipped its regulatory arms deeply into what appeared to be a trough brimming with useful factual information, the Commission came up empty-handed.

But Google was not completely silent. While it kept its factual cards close to the vest, it laid out a legal argument to show that the data collection that occurred during its Street View process was not illegal. 

Google pointed out that the Wiretap Act – a section of the federal criminal code the relevant part of which you can find at 18 U.S.C. §2511 – effectively trumps Section 705(a) of the Communications Act, at least as far as the alleged misconduct is concerned. The Wiretap Act provides that it’s OK

to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public.

The statute defines “readily accessible to the general public” as, among other things, not being scrambled or encrypted. According to Google, the payload data it collected and accessed was only from unencrypted networks, not from any encrypted networks. QED: Nothing illegal happened here. With a casual wave of its cloaked hand, Google assured the Commission that these were not the droids it was looking for. 

And even if the Commission weren’t susceptible to Jedi mind tricks, what was it to do? Thanks to (a) Google’s refusal to provide virtually anything in the way of hard information, and (b) Engineer Doe’s Fifth Amendment embrace, the FCC had no evidence from which to dispute Google’s self-serving conclusion.

Presumably recognizing its predicament, the Commission beat a quick retreat, at least with respect to the claim that Google may have violated Section 705(a). Acknowledging that there is no FCC precedent on this particular question, and acknowledging as well its lack of evidence, the Commission declined to find any such violation here.

But the Commission wasn’t ready to let Google off the hook entirely. Obviously miffed that Google had, um, largely ignored the Commission’s LOI, and its supplemental LOI, and its demand letter, and its second supplemental LOI, and its various blandishments delivered by phone or in person, the Commission wanted at least something to show for its efforts. (Think Glenn Close in Fatal Attraction.)

So with a carefully honed prosecutorial knife, the Commission lunged boldly at Google’s capillaries, proposing a fine of $25,000 because Google’s “level of cooperation with this investigation fell well short of what we expect and require”. The base fine for such lack of cooperation would normally have been $4,000, but the FCC wanted to give Google what for, in part “to deter future misconduct”. For sure the $21,000 bump over the base fine should scare the bejeebers out of Google, whose 2011 gross revenues were a paltry $38 billion or so. With a forfeiture amounting to, what, not even one ten-thousandth of one percent of its annual revenue, Google obviously has much to fear.

Actually, the NAL subliminally suggests that Google has very little to fear, at least from the FCC. That’s apparent from extraordinary redactions that make many pages of the NAL look like Rorschach tests. (See the graphic, above, which depicts one page from the NAL.) Some sample redactions:

  • “In response to the Supplemental LOI, Google expanded upon [REDACTED]. Google explained that [REDACTED]." "Google further stated that [REDACTED]."
  • "In interviews and declarations, managers of the Street View project and other Google employees who worked on the project told the Bureau they [REDACTED]."
  • "One engineer remembered [REDACTED]."
  • "During interviews with Bureau staff, Google employees stated that [REDACTED]."
  • "In both his written declaration and his interview with Bureau staff, the engineer characterized [REDACTED]."

Such redactions are rarely seen around these parts. Our guess is that these were done at Google’s request. The Commission, after all, would appear to have no incentive to withhold the redacted information. Google, on the other hand, is facing potential liability in a number of other venues where its data collection activities are still under investigation. It’s reasonable to assume that Google plans to stick to its stonewall approach as long as possible in response to as many investigations as possible. Inclusion of lots of informational tidbits in an FCC NAL available to the whole world would not be consistent with that strategy. So we’re guessing that Google asked the FCC to be nice guys and black out vast swatches of the NAL.

What’s something of a puzzle is why the FCC would go along with that request. After all, the Commission seems, rightfully, to be cheesed off at the way Google cavalierly thumbed its nose at the FCC’s investigation. Why should the Commission turn around and do Google any favors?

In addition to that practical question, though, the NAL leaves open other far more important legal questions.

Is Google correct that the Wiretap Act effectively permits interception of communications carried on unencrypted Wi-Fi networks? The Act’s language can be read to support that position, and there is nothing contrary to that reading in FCC precedent, as the Commission concedes. But the Wiretap Act was drafted in the 1980s, a decade or more before the advent of even the earliest Wi-Fi networks. It’s not at all clear that, in referring to “electronic communication . . . readily accessible to the general public”, the authors of the Act had in mind a home wireless network, as opposed to the technologies of a generation ago.

And even if the “readily accessible” exception turns out to be applicable where individuals fail to encrypt personal home wireless networks, should data collection of the scale and scope as the Street View project nevertheless be subject to some legal constraint? And at what point does the massive aggregation of data provide sufficient information to violate our expectations of privacy? 

We, of course, have no official opinion on this matter. If we did, though, we would have to say [REDACTED].

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.

White Spaces Update: OMB Signs Off on Information Collections

One small step for white spaces technology . . .

The long-running, slow-paced white spaces proceeding has quietly moved ahead with OMB approval of the “information collection” requirements of Sections 15.713, 15.714, 15.715 and 15.717. Notice of that approval has just been published in the Federal Register. That means that the FCC may implement those requirements, effective now.

But don’t run down to your local Radio Shack looking for miracle white spaces devices just yet. Before the Commission can start to unleash the power of the white spaces, it’s got to settle on a database design. While the Commission has at least identified its initial corps of database managers – originally a nine-member team to which a late-arriving Microsoft was recently added as a tenth – the system which those managers will be charged with implementing is still a work in progress.

Check back here for updates.

And Microsoft Makes Ten

Microsoft decided it, too, wants to be a wireless TV Band Device database administrator.  Well, so do we.

The FCC spent calendar year 2010 studying applications from nine companies that want to be wireless TV Band Device (TVBD) database administrators. The successful applicants will coordinate devices, when they become available, that operate in TV “white space” frequencies. 

Some of the nine applicants, like Google and Comsearch, have enormous expertise in large databases, while some of the others do not.

Last January the FCC, rather than pick winners and losers, simply approved all nine companies that applied.

A few weeks ago Microsoft decided it, too, wants to be a database administrator. Never mind that Microsoft came to this realization 15 months after the application deadline, and three months after the FCC’s decision naming the other nine administrators. Never mind the FCC’s insistence on deadlines in other contexts. (Try sending in your FCC license renewal 15 months after it was due.) Microsoft for some reason gets a pass, not to mention full consideration of its application: the Commission has invited comments on Microsoft’s proposal. “We intend to consider designating Microsoft as a TV bands database administrator,” says the FCC’s public notice.   After all, it continues, Microsoft representatives attended both of the FCC’s database administrator workshops. With a track record like that, why should deadlines matter?

Omitted from the public notice, although possibly a factor in the FCC’s thinking, is that Microsoft, along with a hardware company, demonstrated a TVBD system at the National Association of Broadcasters show in April. The set-up included Microsoft’s prototype white-space database software, which sounds impressive. But the actual operations involved exactly one base station, one client station, and one pretend signal entitled to protection – a far cry from an actual working system in the real world.

Also omitted from the public notice, but probably not a factor in the FCC’s thinking, is Microsoft’s own observation that becoming a database administrator would “enable it to assist its customers in bringing many white spaces applications to market quickly and efficiently.” So what’s good for Microsoft is good for . . . um, Microsoft.

We have no doubt that Microsoft’s qualifications equal or exceed those of at least some of the nine companies selected earlier. Not obvious, though, is that Microsoft’s qualifications are so overwhelming as to justify re-opening the application process after more than a year. Hey, if it’s that easy, we might put in an application ourselves, and make some extra money at home in our spare time. And maybe Microsoft can help us with that long-overdue FCC license renewal.

White Spaces Reminder: Deadline For Registering Distant OTA Receive Sites Fast Approaching

Initial deadline: April 5, 2011

If you’re a TV licensee providing over-the-air feeds to one or more distant translator/LPTV/Class A stations, cable head-ends or satellite local receive sites, heads up. You need to act soon if you want reception of your signal at those sites to be protected from unlicensed devices operating in the TV band. April 5, 2011 is the deadline for TV stations with receive sites more than 80 kilometers beyond their protected contour to seek a waiver of the Commission’s geographic limitation to be able to register such receive locations. Note: this is a one-time-only opportunity.

Back in 2008, when the Commission adopted rules to govern the operation of unlicensed devices in the so-called “TV white spaces”, it sought to protect existing TV operations by establishing a database in which certain locations requiring protection could be registered. While receive locations that happen to be within a TV station’s protected service area were already routinely protected, that wasn’t the case for receive sites serving distant TV translator/LPTV/Class A TV stations, satellite or cable (MVPD) services, all of which deliver the signal to viewers outside the originating station’s protected contour. The Commission decided to protect, within reasonable bounds, the ability of such stations and services to receive programming over-the-air for retransmission.  “Within reasonable bounds” in this context meant within 80 kilometers of the originating TV station’s protected contour. Translator/LPTV/Class A stations and MVPD services with receive sites so located were thus allowed to register their sites in the TV bands device database.

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.

White Space Database Administrator Sweepstakes - Everybody's A Winner! (Except Maybe Affected Spectrum Users)

Nine companies will compete while sharing responsibilities and data.

You know those T-ball games for very young children where everyone is declared a winner and everyone takes home a trophy?

Keep that in mind for a few minutes.

The FCC, as our readers know by now, has authorized wireless TV Band Devices (TVBDs) that will operate in the “white spaces” on the TV frequency map – i.e., on TV channels that have no local TV station. Proponents, who like to call these devices “Wi-Fi on steroids,” claim they will boost the availability of wireless services with extended range, fewer dead spots, and improved speeds, promote rural broadband, aid education and medicine, and further spectrum efficiency. And create jobs. And also clear up that annoying rash.

As a condition of operation, the millions of expected TVBDs will have to avoid causing interference to active TV stations, the many wireless microphones that share the TV band, and certain TV reception sites. To do this, most will consult a complex and changing database that indicates where TVBDs can safely operate. The existence of a database in turn presupposes one or more “database administrators.” Last November, the FCC invited interested parties to submit applications for that role.

Nine companies responded. Some, like Google and Comsearch, have enormous expertise in constructing and maintaining large databases. The qualifications of some others are less obvious.

The FCC made its choice by not making a choice: It approved all nine applicants as database administrators, with the expectation they will compete among themselves for business.

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.

Update: White Spaces Rules To Become Effective January 5, 2011*

* but NOT “information collection” rules or, as a practical matter, any white spaces rules dependent on existence of any FCC-blessed white spaces database

As we reported last September the Commission disposed of 17 petitions for reconsideration of its white spaces rules, and thereby set the stage for getting those rules up and running. Or so many folks may have thought. But no job is ever done until the paperwork is wrapped up, and the mere release of the Second Memorandum Opinion and Order didn’t do the trick – such items must first be published in the Federal Register.

That publication has now happened . . . so most – but not all – the white spaces rules are now officially set to take effect on January 5, 2011.

Why not all? Because a number of the rules – specifically, §§15.713, 15.714, 15.715 and 15.717 – involve “information collections” which can’t be implemented before the OMB approves them. So those particular rules are not subject to the January 5 effective date.

But even though we now have an official effective date, we probably won’t be seeing white spaces gear screaming off the shelves and improving all of our lives right away. That’s because the white spaces rules depend in large measure on the existence of a national white spaces database compiled and maintained by a manager . . . and the Commission has yet to sign off on a database system or select a manager. While there have been some indications that progress is being made on those fronts and that we might see some developments real soon, the roll-out of virtually all white spaces devices will, as a practical matter, be on hold until the FCC wraps up the necessary paperwork on that part of the process.

White Space Wite-Out®

It’s okay; we all make mistakes.

The FCC’s recent order on white space devices, which we reported on here, and followed up on here, had a few glitches. The FCC has now released a longer-than-usual erratum clearing them up.

A Closer Look At Some White Spaces Fine Print

Protection of TV STAs overlooked; Potential protection of LPTV, TV translator, cable, etc. OTA-receive sites expanded

Poring over the fine print of the FCC’s “white spaces” decision we wrote about last week, we have found two issues that merit the attention of TV broadcasters.

White spaces devices, of course, will operate on vacant TV channels and will have to protect TV broadcast stations. Each device will consult a database to determine which TV channels can be safely used at the device’s location. Devices may have to change channels as necessary from time to time to afford the required protection.

Since the selection of vacant channels will be a dynamic process, the FCC wants to make sure that only channels actually in use by TV stations are marked as off-limits. So, for example, channels occupied by unbuilt TV construction permits would be available for white spaces devices, since, being unbuilt (and, thus, inoperative), the TV CPs would not be subject to any actual interference. With that in mind, the new rules provide that the white spaces database need recognize only granted or pending license applications for both full and low power TV stations.

Whoops.  What about Special Temporary Authorizations (STAs)?

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.

FCC Okays White Space Devices

New rules eliminate back-up protection for TV stations and wireless microphones.

The FCC has ruled on 17 petitions for reconsideration of the TV “white spaces” rules. This action allows unlicensed wireless networks and devices – “Wi-Fi on steroids,” some call them – to operate on locally vacant TV channels, called “white space” frequencies because they show up as white areas on maps of frequency usage. 

The FCC earlier tried to rename the gadgets “TV band devices,” or TVBDs, but the white space nomenclature is hard to shake.

Whatever the name, companies like Google, Microsoft, and Dell Computer are drooling at the prospect. They have told the FCC to expect a lot of hot spots and campus networks, and they are using all the right technical and political buzzwords.   Here in the CommLawBlog bunker, though, we're accustomed to dazzling PowerPoint that never materializes into actual products, so we tend to take a wait-and-see attitude.

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.]