Aviation safety remains a critical enforcement issue for the Federal Communications Commission, as we highlighted in a recent blog post.  Late last week, Utah Broadband found out the hard way as the FCC assessed the company a $25,000 fine for violating rules designed to prevent interference to Terminal Doppler Weather Radar (TDWR) stations that operate in the 5.6 GHz band to detect wind shear and microbursts that can affect aviation safety.  In this case, an FCC/FAA enforcement team found that Utah Broadband had modified its transmission equipment to impair TDWR operations at the facility located near the Salt Lake City International Airport.  In addition to its enforcement efforts, the FCC intends to launch a rulemaking proceeding to create a long-term solution to enable access to more than 100 megahertz of spectrum in the 5.6 GHz band, to allow new devices to be certified and to improve interference protection to existing TDWR locations. 

The problems for Utah Broadband occurred in part because the frequencies that the government uses for TDWR systems are shared with commercial users of unlicensed devices – called UNII devices – in the 5600-5650 MHz band.  UNII devices are authorized under Part 15 of FCC rules and are subject to specific technical requirements, including the obligation to use Dynamic Frequency Selection (DFS) in the 5470-5725 MHz band to help allow the device to avoid using channels occupied by nearby TDWR systems.  Toward the end of 2007, TDWR systems began encountering interference at various locations nationwide.  In February 2009, the Federal Aviation Administration (FAA) asked the National Telecommunications and Information Administration (NTIA) and the FCC to assist in resolving the interference problem.   In response, the government conducted initial field testing at the station near San Juan International Airport in Puerto Rico, a station that was subsequently found to be experiencing “severe” interference.  FAA and FCC field engineers agreed that the interference was caused by UNII devices.  

The FCC also halted certifying devices for operations in this band and began to engage an industry group to help develop new testing parameters for equipment certification, while also looking for a short-term solution. Manufacturers wanted to see equipment certifications re-examined.  Wireless ISPs wanted to gain access to additional spectrum – the 5600-5650 MHz band and the 30 megahertz on either side of that block, for a total of 110 megahertz.  The FAA and NTIA wanted to see the interference disappear.  The FCC was acting as the broker for all of these interests, attempting to balance the interests of the public and the governmental sectors.  After months of talks, and with the encouragement of the agencies, the Wireless Internet Service Providers Association and Spectrum Bridge (both clients of our law firm) established a voluntary database by which UNII users could register their technical data and locations.  The registration would be for UNII devices operating within 35 km of a TDWR location on frequencies within 30 megahertz of the TDWR center frequency.  The database proved to be somewhat successful, but interference problems have persisted.  As a “stick” for the database “carrot,” the FCC took the unusual step of writing a memorandum to manufacturers and operators explaining the problem and issuing a stern warning that enforcement would continue.

For the government, detecting and rooting out interference is a bit like playing Whac-A-Mole – interference would disappear at some stations, only to reappear later and in different locations.  In San Juan, in the wake of near-continuous interference, the FAA actually shut down the TDWR station and the FCC sanctioned a company called Ayustar.  TDWR stations in Miami, Ft. Lauderdale, New York, Chicago, Dallas and Salt Lake City have suffered periodic interference.

These developments bring us to the Utah Broadband decision.  Amid reports of substantial interference to the Salt Lake City TDWR station, FCC and FAA enforcement visited the Salt Lake City area in October 2010 and found that Utah Broadband was doing many things wrong:

• Operating UNII devices outside the authorized frequencies.
• Disabling DFS functionality
• Likely operating at power above the maximum permitted by FCC rules
• Repeatedly and willfully violating FCC rules

Although detecting the source of interference is apparently not easy, when the inspectors enabled DFS to block operations on spectrum used by the TDWR station, the interference from Utah Broadband’s operations disappeared.  Citing “the totality of the evidence, the number of unauthorized systems in operation, and the gravity of the public safety risks posed by the unauthorized operation,” the FCC slapped Utah Broadband with a $25,000 fine, representing an upward adjustment over the base fine and an increase over the forfeiture imposed against Ayustar.  The FCC also required Utah Broadband to make a “blackboard apology” by sending a signed statement into the FCC certifying its compliance with the equipment authorization and FCC rules.

According to the FCC, about two-thirds of the interference cases involve intentional abuses of Commission rules similar to the violations for which Utah Broadband was cited.  We should expect the FCC and the FAA to continue their enforcement efforts to find violators and issue stiff fines.

For a long-term answer, the FCC remains interested in finding solutions that will enable UNII devices to operate in the band while reducing – or eliminating – potential interference to TDWR stations.  DFS requirements and the voluntary database have had a limited impact because rogues will always look for ways around the rules.  Unfortunately, these bad apples have spoiled it for the vast majority of UNII device manufacturers and operators that operate legitimately.

The FCC is expected to commence a rulemaking proceeding this year.  Among other things, the FCC will consider mandatory database registration for all new devices certified under new testing parameters.  This database could be manual – requiring device users to enter technical and location information into a database – or GPS-based – requiring the devices themselves to automatically register in the database under procedures similar to those recently adopted for TV white space devices.  This approach is a bit problematic for legacy devices, which are not equipped for geo-location registration, but mandatory registration will provide the FCC with another “carrot” – compliance by registration – and a “stick” – fines and other sanctions for failing to register. 

For now, the Utah Broadband decision shows that FCC and FAA inspectors remain in the field looking for violators and will take action to address wrongdoers that cause illegal interference.  Aside from the obvious ramifications to manufacturers and operators in the 5.6 GHz band, it’s important for industry to understand that responsibly sharing spectrum with the government can open doors for additional spectrum use down the road.