Back in November, the FCC adopted rules that will eventually allow unlicensed communications devices to use vacant TV channels: the so-called “white space” frequencies. We outlined the details here. It took another three months for the rules to make their official debut in the Federal Register. Some of the rules (although not the ones that matter most) take effect in late March. Details are here.   

The February 17 publication in the Federal Register opened the window for aggrieved parties to object to the rules in court. Some have done so.  Two associations of broadcasters, long concerned about unlicensed devices causing interference to TV reception, filed an appeal in the U.S. Court of Appeals for the D.C. Circuit. But TV stations are not the only licensed users of TV frequencies. The wireless microphones widely used for movie and TV production, and at music and sports venues, operate on vacant TV frequencies and could be crowded out by unlicensed devices. A few groups that make heavy use of the microphones – ESPN, the major professional sports leagues, and New York theater owners and producers – filed their own appeal in the U.S. Court of Appeals for the Second Circuit. The two cases will eventually be consolidated into one.

The appeals do not alter when the rules take effect unless a party requests and receives a stay from either the Commission or the court. This is a rare event.

Another way to complain about the rules is to formally ask the FCC to reconsider its decision. The deadline for doing that falls on March 19. If anyone takes that route, the courts are likely to hold their cases in abeyance until the FCC has completed reconsideration. That typically takes 1-2 years. The court proceedings, if still necessary after the FCC’s second look, will take a year past that. One possible outcome of an appeal is a remand to the FCC for further proceedings, which will take another 1-2 years, possibly followed by still another court appeal.

Technology has a way of moving forward despite the tortuous workings of the FCC and the courts. (Maybe the engineers are just better focused than the lawyers.) As the legal processes grind on, new technical developments, along with people’s evolving preferences, may give us new ways to use the spectrum that could leave today’s litigants arguing over what will soon be yesterday’s problems. But until then, we will keep you posted as the story unwinds.