FCC declares that government users must show that their proposed uses of spectrum qualify as “public safety service”
The FCC has issued a declaratory ruling clarifying eligible uses of broadband public safety frequencies in the 700 MHz band. For the time being, it has focused only on which governmental agencies may use the spectrum, reserving until later the question of whether other entities may also participate.
When the upper 700 MHz band (consisting of TV Channels 52-69) was taken away from television broadcasting and reallocated to wireless services, the frequencies were divided between commercial and public safety entities. The 763-768 and 793-798 MHz bands were reserved for broadband public safety use; they have been licensed to the Public Safety Broadband Licensee (PSBL). The idea is that the PSBL will operate a nationwide compatible network and will lease capacity to local and state public safety entities. As the plan was originally conceived, a commercial partner – which was to be chosen by auction to build the network – would be allowed to share unused capacity. The problem is that no commercial entity bid the required minimum in the auction, so the PSBL now has a license but no one to build out the network.
Not wanting to wait to deploy, several entities applied for waivers to build their own broadband systems now, and the FCC has granted 21 of them. Financing is obviously an issue for these systems, so the waiver recipients are looking to maximum permissible use. To that end, the City of Charlotte, North Carolina, asked the FCC for a declaratory ruling that essentially any use of the spectrum by a governmental entity would constitute “public safety services” as required by Section 337(f)(1) of the Communications Act. That section includes a very specific definition that applies only to the 700 MHz band spectrum, but applies to both broadband and narrowband channels in that band. In response, the FCC declined to go quite as far as Charlotte might have liked, but still managed to leave a considerable number of doors open to Charlotte and other governmental users.
The Commission’s ruling is expressly limited to uses by governmental entities, leaving issues involving private utilities for a later day. And as to Charlotte’s overall request – i.e., that any use by a governmental entity be deemed to meet the act’s requirements – the Commission said “no”: both the identity of the user and the nature of the use are required elements to qualify under with Section 337(f)(1) of the Communications Act. Under that section, “public safety services” are services: (a) whose sole or principal purpose is to protect safety of life and property and (b) that are provided by state or local government entities or by nongovernmental organizations authorized by a government agency whose primary mission is the provision of public safety services. In addition, services provided on public safety spectrum must not be commercially available to the public by the provider. So while being a governmental entity gets you part of the way there, you still have to demonstrate that the use to which the spectrum would be put by that entity qualifies as well.
And just what uses will qualify? The Commission did not provide a definitive, comprehensive list, but it did provide a number of examples. Those examples demonstrate that eligibility will not be limited to police and fire departments – to the contrary, it appears that the Commission plans to be liberal in identifying uses that will qualify as public safety services. The Commission expressly acknowledged that agencies such as housing and transportation authorities, and even animal control and water works, can have significant public safety functions. So while not all governmental uses will qualify, it seems clear that many will.
To qualify for use of the new public safety frequencies, the communications traffic must be public safety-oriented. Radio traffic relating to day-to-day operations will not necessarily qualify. On the other hand, public safety functions are not limited to emergency situations and may involve routine functions. The point is that the radio call must relate to public safety and not something else. Unless and until the Commission chooses to provide a detailed list of “approved” uses, governmental entities may end up having to request specific guidance with respect to particular uses which the Commission has not already addressed.
Is this all crystal clear to you now? Probably not, but the FCC was not trying to cover all the possibilities in its ruling. Its intent was to be more “inclusive” than not and to provide a structure for future interpretation of the statute. Meanwhile, public safety agencies looking to deploy new technology, while maximizing efficiency and drawing funding from as many sources as possible, now have an idea of the direction in which the FCC is heading.
