A Role for WISPs in FirstNet

In recent months, WISPs have been sharing their ideas and concerns about FirstNet and its effect on the WISP industry.  As you may know, Congress gave FirstNet $2 billion dollars and an IOU for $5 billion more to establish a nationwide wireless LTE first-responders’ network. The FCC gave FirstNet 20 MHz of 700 MHz spectrum to use for free. Only in America can a company be so well funded without a management team, business or technical plan. But that is all changing, very fast.

 

A Role for WISPs in FirstNet

 

FirstNet turned out to be a big topic of conversation during the recent WISPAmerica conference in Covington, KY. FirstNet board member Ed Reynolds, a former wireless executive widely credited with successfully merging AT&T with BellSouth, spoke to WISPs about FirstNet. He saw that WISPs are in a good position to help stand up this new network, particularly in rural areas where the big carriers have not already built LTE networks.

 

This much is clear: WISPs have an opportunity to work with FirstNet. Existing wireless, tower, and backhaul infrastructure can be leveraged in return for financial consideration and, potentially, to access 700 MHz spectrum for commercial use in return for building the LTE first-responders network.

 

Technical parameters are being developed.

 

WISPs most often ask us about the technical parameters and capabilities of the proposed network. Technical specifications remain to be determined, and because so much remains to be decided, this is not an opportunity that every WISP can get their arms around. At this early stage, some of the unanswered questions are set to be resolved in this FCC Notice of Proposed Rulemaking:

 (http://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0312/FCC-13-31A1.pdf).

 

The FCC is considering initial rules to implement a statutory framework for deploying and operating the nationwide public safety broadband network. The main topic areas in the NPRM include 1) technical service rules, such as power limits, emission limits, field strength limits and interference coordination, 2) comment on the FCC’s exercise of the FCC’s statutory responsibilities relative to the oversight of FirstNet and 3) addressing how to treat different classes of incumbents in the FirstNet spectrum, which will use both the existing broadband public safety spectrum (763-769/793-799 MHz) and the D Block spectrum (758-763/788-793 MHz).

 

Interested WISPs are taking action.

 With the support of  WISPA’s Emergency Communications Action Team (WECAT), and as its counsel, we have organized a group of motivated WISPs seeking to impose rural construction milestones on FirstNet (to encourage partnering with WISPs to help ensure that this spectrum is utilized).  The FCC notice is here:

http://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0312/FCC-13-31A1.pdf

Our hope is that this group of WISPs will pave the way for broader participation by WISPs in FirstNet. In the meantime, we are working to raise awareness of the many contributions WISPs can make to the success of FirstNet.

Regional workshops and state-level coordination

For now, FirstNet is holding six regional consultation workshops in May and June of 2013.  These meetings represent the formal kick-off of FirstNet’s consultation and engagement with state, regional, tribal, and local jurisdictions and public safety entities.  During these meetings, FirstNet is providing a project update and is gathering input from attendees about their state’s specific, and often unique, requirements and priorities. What FirstNet members learn in each regional workshop will help FirstNet design the network and conduct an effective vendor RFI/RFP process. This will in turn drive the timeline for delivering the state-level build-out plans needed so each state can evaluate its participation in FirstNet.

States have the right to opt-out of participating in FirstNet. WISPs are well advised to stay connected to learn who each State appoints to coordinate with FirstNet, and to introduce yourself and your company’s capabilities. WECAT has been working successfully to raise awareness of WISPs generally within FirstNet and at NTIA. Our progress was clear when FirstNet agreed to send Ed Reynolds to WISPAmerica.

A copy of the presentation of FirstNet Board members from the first regional workshop is posted on FirstNet’s page on the NTIA website (http://www.ntia.doc.gov/category/firstnet). The NTIA website is one of the best sources for information about FirstNet and to find requests for proposals from FirstNet.

Controversy in the Capitol

 

Of course, FirstNet is not without drama. What would life be like in Washington, DC without drama?

 

Sheriff Fitzgerald of Store County, Iowa, a FirstNet Board member, dropped a bombshell at the last Board meeting when he accused other Board members of improper conduct in awarding consulting agreements and in failing to share information and to conduct open meetings. Some in the public safety community say that the Board is dominated by large wireless companies that wish to commercialize the spectrum, a feeling some WISPs have conveyed to me.

 

It doesn’t help dispel this perception that its new CEO, Bill D’Agostino, Jr., just left Verizon to join FirstNet.  I have said before that there will be Congressional hearings long before there is a network and for now, lawyers are left to look into the charges. We haven’t heard the last on this issue.

 

Nor have we heard the last about FirstNet. Despite the skepticism I share with many about FirstNet and about the role of government in standing up a wireless network, there are opportunities to work with FirstNet to do good in your communities, to monetize the spectrum and leverage the build-out in ways that cannot be ignored.

U.S. SUPREME COURT UPHOLDS FCC'S TIME LIMITS ON WIRELESS SITING APPLICATIONS

Leonard Bernstein reportedly said that to achieve great things, two things are needed: a plan, and not quite enough time.

In that vein, the U.S. Supreme Court, by a 6-3 vote, has upheld the Federal Communications Commission’s interpretation of provisions of the Communications Act of 1934 that require state and local zoning authorities to act on certain wireless service providers’ antenna-siting applications within a “reasonable period of time.” More broadly, the Court’s decision addresses the degree of deference that reviewing courts must give a federal agency’s interpretation of statutory provisions that define the agency’s legal authority.

City of Arlington v. FCC involves a petition brought by certain state and local governments.  In 2009, the FCC issued a Declaratory Ruling establishing its interpretation of what constitutes a “reasonable period of time” for state and local governments to process antenna-siting applications under Section 332(c)(7)(B)(ii) of the Communications Act. The Declaratory Ruling acted on a petition filed by CTIA – The Wireless Association on behalf of certain wireless service providers. While state and local governments have legal authority to regulate the location, construction and modification of certain defined “personal wireless facilities,” the Communications Act places specific limits on this authority, such as the requirement to process wireless-siting applications within “a reasonable period of time.”

The FCC stated in the Declaratory Ruling that “unreasonable delays” in the siting process had “obstructed the provision of personal wireless services.” The FCC determined that a “reasonable period of time” is presumptively 90 days to process a collocation application and 150 days to process all other applications. 

The Petitioners challenged the FCC’s authority to interpret “ambiguous provisions” of the statute; here, relating to judicial review of wireless-siting decisions and a savings clause that provided that only those provisions in Section 332(c)(7)(B) “shall limit or affect the authority of a State or local government” over siting decisions. While the law requires reviewing courts to afford an agency a measure of discretion in the agency’s interpretation of ambiguous statutes, the Petitioners characterized the FCC’s action as that agency’s effort to interpret “its own jurisdiction.”

Generally, a reviewing court considers a federal agency’s construction of the statute it administers based on two principles: whether Congress has spoken directly to the precise question at issue, and if not, whether the agency has addressed the issue with a permissible construction of the statute. Justice Scalia, writing for the majority, rejected the Petitioners’ objection to the FCC’s interpretation of its jurisdiction. He stated that “judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional.’ Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not.” Justices Thomas, Ginsburg, Sotomayor and Kagan joined in the opinion, and Justice Breyer filed an opinion concurring in part and concurring in the judgment. Justices Roberts, Kennedy and Alito dissented. 

The City of Arlington decision could shape other pending cases where the scope of the FCC’s regulatory authority is at issue.  For example, Verizon has a case before the U.S. Court of Appeals for the D.C. Circuit that challenges the FCC’s authority to regulate Internet Service Providers via the “Open Internet” rules.  Elsewhere, a separate pending case in the U.S. Court of Appeals for the 10th Circuit involves petitions for review of the FCC’s “USF/ICC Transformation Order” establishing the Connect America Fund for federal broadband subsidies.  While these cases involve different facts and may lead to different results, there’s good reason to think that the City of Arlington precedent will be reflected in these and other future cases.  In the meantime, the decision confirms that providers whose services are covered by the statute now have additional legal support in seeking timely approvals for sites for towers and antennas.