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:



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:


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.

FCC Authorizes Channel Sharing for TV Stations in Advance of Incentive Auctions

At its open meeting last Friday, the Federal Communications Commission adopted rules that will enable TV stations to share channels of broadcast spectrum.  As the first step in the process to make TV band spectrum available for new uses, the new rules will allow TV stations to voluntarily share a single six megahertz channel as part of the incentive auction process approved by Congress in February.  This process will involve providing broadcasters with financial incentives to submit their licenses for cancellation in exchange for a share of proceeds of reauctioning the spectrum for new service providers.  The channel-sharing rules apply only to those TV stations that participate in the incentive auction process.  The rules will be effective 30 days following publication in the Federal Register. 

Under the new rules, TV stations must continue to transmit at least one standard definition stream over-the-air at no charge. These stations will still be licensed separately and thus subject to all of the associated regulatory obligations.  Only full power and Class A commercial and non-commercial TV stations are eligible; LPTV and TV translator stations cannot participate.  The Commission stated that each TV station would be required to continue to cover its community of license, but deferred to a separate proceeding issues related to loss of coverage (e.g., relocation of transmit site, propagation changes resulting from channel change).  Within these parameters, TV stations may enter into agreements to determine how the spectrum will be shared.

The Commission also concluded that, as required by the spectrum legislation, each separately licensed TV station sharing a single six megahertz channel will have one primary stream of programming that is subject to “must carry” rights.  In this regard, the new rules are intended to have no effect on cable or satellite carriage of TV stations, so long as the stations meet existing technical requirements such as providing a “good quality signal” of at least -61 dBm to the cable or satellite provider. 

Expect much more to come as the Commission attempts to clear TV stations and repack the remaining spectrum for use by TV stations, wireless carriers and unlicensed devices. For starters, the FCC will hold a channel sharing workshop on May 22. 

Congress Makes Sweeping Changes to Spectrum Policy; Authorizes TV Band Incentive Auctions

On Friday, overwhelming majorities of both the House and the Senate passed a payroll extension bill that includes important changes to spectrum policy.  The legislation is expected to raise $15 billion for the Federal Treasury and to create hundreds of thousands of jobs. The details of the legislation are now delegated to the NTIA, the FCC and other agencies to develop reports and to adopt rules to implement Congress' objectives. 

Below is our take on some of the main provisions of the legislation as it applies to spectrum policy and wireless broadband services. 

Incentive Auctions and Band Clearing

Aside from public safety, the main driver of spectrum legislation was the need to address the spectrum crunch (real or imagined) for mobile wireless interests. To do this, Congress decided to offer TV broadcasters compensation to voluntarily relinquish their spectrum for repurposing by the FCC for broadband uses. Congress granted specific authority for a two-phase voluntary "incentive auction" that would clear a portion of the TV band (Channels 2-51) for mobile interests and, as part of that process, change the TV "white space" landscape. Because Channel 51 is adjacent to the Lower 700 MHz A Block (formerly Channel 52), the FCC is expected to attempt to "re-pack" the TV stations into the lower portion of the UHF band (beginning with Channel 14). The auction process is expected to take several years.

Under the legislation's language, "relinquishment" of a TV station means (1) relinquishing all usage rights to a channel, (2) relinquishing a UHF channel for a VHF channel, or (3) sharing a channel with another TV station. In lieu of relocation reimbursement, TV stations can obtain, as appropriate, a waiver of FCC rules to make flexible use of their spectrum so long as the TV broadcaster provides at least one programming stream at no charge. Depending on how the FCC ultimately interprets this provision, TV broadcasters could obtain a limited right to offer broadband on their spectrum alongside video service, but only if they forego relocation reimbursement.

Significantly, the FCC is required to reallocate and auction the T-Band (470-512 MHz, i.e., Channels 14-20) used by public safety in 11 major markets, with the spectrum sale used to cover relocation costs. Although not stated in the legislation, the FCC can also clear other users -- land mobile, for instance -- out of the TV bands. The FCC also can relocate radioastronomy users on Channel 37 at a cost of up to $300 million. The ability to relocate Channel 37 users could be a significant band-clearing opportunity because that channel operates as a nationwide encumbrance in the heart of the TV band.

TV White Spaces

Early House Majority versions of the bill would have required the FCC to auction all unlicensed spectrum (though it was unclear whether this included white space spectrum that had previously been allocated). The version of the legislation that passed essentially creates two flavors of white space.

  • First, the existing TV white space and the TV white space remaining after the re-packing -- remember, that's several years away -- will be available for fixed and mobile wireless use. There will no doubt be a loss of TV white space in many markets as a result of the incentive auction, but Congress and FCC staff expect that there will vacant TV channels will remain in many rural areas after the re-packing. The re-allocation of Channels 14-20 will create additional spectrum in major markets for TV stations to relocate, and the possible relocation of Channel 37 radioastronomy users will also clear spectrum.
  • Second, the FCC has the discretion to use relinquished spectrum or other spectrum to implement guard bands that would, in practice, create a nationwide unlicensed allocation as recommended in the National Broadband Plan. The FCC may "permit" the use of guard band for unlicensed use, but is not required to, and the guard bands must "be no larger than is technically reasonable to prevent harmful interference between licensed services outside the guard bands." (Reports were that earlier versions of the bill used the phrase "technically necessary.") Based on our discussions with the FCC, they see a guard band acting as a "duplex gap" band between LTE-Advanced uplink/downlink spectrum allocations, though this thinking is only preliminary and the ultimate band plan, channel sizes and technical rules will be determined through an FCC rulemaking proceeding. The limits of the FCC's discretion on guard bands appear to be subject to interpretation.

3550-3650 MHz

Earlier versions of both the Senate and House bills would have required the FCC to auction the 3550-3650 MHz band (with certain exceptions). The band is not allocated for commercial use; rather, the Department of Defense uses it at present. The final version removed the auction mandate, but requires NTIA to give priority to options involving exclusive non-Federal use and to choose sharing only if NTIA and OMB determine that relocation of a Federal user is not feasible because of technical or cost constraints. Thus, the 3550-3650 MHz band could be subject to auction ("exclusive use") unless it is not feasible to relocate Federal users.  If that's the case, commercial and Federal users could share the band under technical rules the FCC would adopt. The radar uses in the 3550-3650 MHz band may be difficult to relocate, which would make the case for shared unlicensed use easier.

Other Unlicensed Bands

The spectrum legislation identifies two additional bands for possible unlicensed use. First, NTIA, the Department of Defense and other agencies will study spectrum-sharing and risks to incumbent Federal users if unlicensed U-NII devices were allowed to operate in the 5350-5470 MHz and 5850-5925 MHz bands – a total of 195 MHz of spectrum. The agencies will issue reports on their findings. The report for the 5350-5470 MHz band is due in eight months, and the report on the 5850-5925 MHz band is due in 18 months.

Wireless Facilities Deployment

An under-appreciated section of the bill provides significant benefits to wireless companies, fixed and mobile, that want access to towers owned by state and local governments. Under the legislation, a local government must approve an "eligible facilities request" to modify an existing wireless tower or base station that does not "substantially change" the physical dimensions of the tower or base station. An "eligible facilities request" is a request to collocate new transmission equipment, remove transmission equipment or replace transmission equipment. The FCC will decide how to interpret "substantial change" pursuant to a rulemaking proceeding. In addition, GSA is required to develop master contracts for wireless antenna structures on property owned by the Federal government.


The new spectrum legislation is a beginning, not an end. Many details have yet to be determined, but many interests – including broadband providers, whether fixed or mobile, broadcasters, public safety users and others -- can find something to like in the new legislation.

Of Databases and Legislation: TV White Spaces on Trial

This week, the Federal Communications Commission took another important step toward bringing fixed wireless broadband service to rural Americans by announcing the first TV white space database trial.  For a 45-day period beginning September 19, Spectrum Bridge, Inc. (a Rini Coran, PC client) will make publicly available its database, which identifies available TV channels for unlicensed broadband operations.  Separately, FCC Chairman Julius Genachowski issued a supporting statement trumpeting the benefits of white spaces.  This is welcome news in the face of an U.S. white space ecosystem that is threatened by pending Congressional legislation.

In the trial, participants will have access to elements of the database that are designed to protect TV stations, cable headends and broadcast auxiliary stations and registered wireless microphones.  Once the trial concludes – and the FCC can extend the trial beyond the November 2 end date – Spectrum Bridge is required to give the FCC a report that notes any problems and changes to the channel availability calculator. 

Chairman Genachowski took the rather unusual step of issuing a News Release announcing the Spectrum Bridge trial, stating that “[u]nleashing white spaces spectrum will enable a new wave of wireless innovation.  It has the potential to exceed billions of dollars in economic benefit from wi-fi, the last significant release of unlicensed spectrum, and drive private investment and job creation.”  The Wireless Innovation Alliance (WIA) and Public Knowledge were quick to hail the FCC’s initiation of the first database trial.

Meanwhile, at the Super WiFi Summit in Austin this week, attendees got a full slate of information about white space technology, databases and legislation.  On the latter point, Michael Calabrese of New America Foundation reiterated many of the points made in his recent House testimony and discussed the potential for spectrum reform legislation to sharply reduce, if not eliminate, the amount of white space available in many markets.  He detailed WIA‘s efforts to ensure that unlicensed white space is preserved and that Congress does not mandate auctions for future unlicensed bands.  I provided insight into the perspective of wireless Internet service providers (WISPs) that could be harmed by the proposed legislation and noted the “boots on the ground” efforts of the Wireless Internet Service Providers Association (WISPA) to better educate Congress on the consumer benefits of unlicensed spectrum.  To that end, and as just one example, WISPA member Brian Webster created a map using data from the NTIA’s mapping program showing the census blocks in Illinois that are uniquely served by WISPs in both licensed and unlicensed spectrum (not including coverage offered by the cellular technologies or satellite internet).  From the map below, one can see the obvious benefits that WISPs, and only WISPs, provide to consumers.  As Congress pushes forward to consider legislation in the next few weeks, these will be important messages to convey.

(click map below to enlarge)

Fixed wireless unique served areas.png

The Uncertainty of Unlicensed: New Threat Posed by House Draft Legislation

Yesterday, Steve Coran presented a webinar to members of the Wireless Internet Service Providers Association (WISPA) on spectrum reform legislation that is being considered by the U.S. House of Representatives.  The presentation focused on provisions addressing the future of unlicensed spectrum allocation, with discussion on a novel and untested auction concept that would require bidders wanting non-exclusive rules to bid against licensees wanting licensed rules for the same spectrum.  Steve commented that this is "untried and untested, and unlikely to raise significant revenues in light of the uncertainty the rules would raise."  Steve urged the WISPA members to participate in the advocacy effort by communicating with their representatives.

Don't Change that Channel: FCC Takes Steps to Transition TV Stations ... Again

Effective immediately, the Federal Communications Commission will no longer accept rulemaking petitions for TV stations to change their licensed channels. This is unfortunate news for stations who are still studying ways to improve free local over-the-air DTV service. 

Today’s announcement comes after the FCC staff’s completion of nearly 100 channel changes since lifting its filing freeze on May 30, 2008. FCC staff apparently believes that licensees have had sufficient time to evaluate engineering options and presumes there is no pent-up demand for channel changes. Such speculation might have been avoided if instead of an immediate freeze, a short filing window was established to permit filings for channel changes before the freeze became effective. 

FCC staff indicates that the freeze is necessary to facilitate the re-packing and reallocation of portions of the TV Band for broadband services, as recommended in the National Broadband Plan. While the FCC lacks authority to conduct incentive auctions, it may re-pack the TV band to create more spectrum for wireless broadband. FCC Chairman Julius Genachowski signaled his interest in repacking the TV band in his April 12, 2011 remarks at the NAB Show. FCC staff has been doing a road show around the country promoting the benefits of incentive auctions, so this action comes as no great surprise. 

What is becoming clear is that TV stations should begin contemplating a second DTV transition and the possibility of changing channels yet again. In the meantime, FCC staff has taken a step toward minimizing the number of moving parts in this transition by making sure that TV stations stay put, for now. 

For more information, don’t change that channel …

AT&T/T-Mobile Merger: Pushing the Edge of the Envelope

Obviously, Sprint must have been valuing T-Mobile for much less than the reported $39 billion price that AT&T has agreed to pay.  Given the high antitrust hurdles to approval of an AT&T/T-Mobile combination (this would give two carriers, AT&T and Verizon, a combined market share of almost 80 percent), we have to think that if Sprint had offered anything in the low $30s, Deutsche Telekom would have opted for a Sprint deal.  A combination of Sprint and T-Mobile would have had smooth sailing at the FCC and DOJ.

Notwithstanding, this is probably a good deal for T-Mobile.  First, if it goes through, this is a great price.  Second, if it doesn’t go through, T-Mobile gets a $3 billion break-up fee, which is equivalent to a whole year’s capital budget!

There is another important point to make.  Although I just threw out the 80 percent market share figure, as have many others, neither the FCC nor the DOJ looks at the USA as a single “market” for wireless services.  Traditionally, the regulators have looked at each metro area as a separate “market,” likening wireless service to local phone service.  Although there may be some individual metro areas where AT&T and T-Mobile combined have such a large market share that the regulators will balk, the likelihood is that this deal gets granted with “conditions,” as opposed to an outright denial from regulators.  To the extent that AT&T’s CEO says the FCC has to look at this merger on a market-by-market basis, he is just accurately summarizing what the FCC has done in the past.

At least in the short term, this deal is not good for Sprint or for other carriers whose main asset is ample spectrum, because T-Mobile gives AT&T additional spectrum, especially where AT&T needs it most, in the major metro areas.  That means AT&T has less need to go out and quickly acquire more spectrum somewhere else.

I say “in the short term,” because the flip side is this.  If and when this transaction is approved, it will then be very difficult for the regulators to say that Verizon can’t acquire Sprint, or for that matter, Clearwire.  So maybe, in a perfect world, this deal will turn out to be a big win for all these companies’ shareholders.  The impact is still unclear for consumers, who are bracing for higher prices; broadcasters, who are hoping that this transaction sheds new light on demand for spectrum; and wireless ISPs, who are concerned about preserving competition for spectrum and customers.  Keep your seat belts on, because this deal may take a year to 18 months to get done, if at all.


Earlier today, the FCC granted a six month extension of time to November 1, 2011 for Educational Broadband Service (EBS) licensees to comply with the substantial service test. The filing itself will now be due on or before November 15th. The substantial service test requires licensees to demonstrate how they are using each licensed channel at least 20 hours per week to fulfill their educational mission.  The substantial service deadline for Broadband Radio Service (BRS) licensees is not affected by today's action, and that deadline remains May 1, 2011.

In this video, I discuss the FCC's decision and its ramifications for EBS licensees and others. 

Video Blog-EBS.mov

FCC's New Rules for Rural AM and FM Radio Service Make Waves but Miss the Mark

The Federal Communications Commission’s job description includes the responsibility to implement rules and procedures for awarding new broadcast stations and for permitting incumbent AM and FM stations to relocate their facilities, and by extension, their service areas.  The FCC recently revised its criteria for selecting among competing proposals for new AM stations, new FM allotments and FM stations seeking to change their community of license. The new rules fall short of providing broadcasters with the necessary flexibility to relocate radio stations where they will provide the maximum service to the public. 

Section 307(b) of the Communications Act requires the FCC to make a fair, efficient and equitable distribution of radio service.  In discharging this obligation when awarding new AM or FM stations or approving community-of-license changes, the FCC relies upon four priorities for selecting among competing proposals: 

  • (1) first fulltime aural (reception) service;
  • (2) second fulltime aural service;
  • (3) first local (transmission) service; and
  • (4) other public interest matters. 

The FCC gives equal consideration to Priorities (2) and (3), and competing parties who propose the highest priority service or, if the priorities are equal, propose service to the larger community or population, will be entitled to a preference for their proposed station or communityThe FCC is concerned that reliance upon these priorities has caused the FCC to favor urbanized areas – at the expense of smaller communities or rural areas – when granting new AM stations, new FM allotments and community of license changes.  Under the new rules, the FCC will de-emphasize population differences as a principal metric in awarding Section 307(b) preferences in favor of a “more realistic” evaluation of the totality of the station’s proposed service.  The FCC will emphasize that the goal of Section 307(b) is to prevent excessive concentration of radio service in larger cities. To the FCC, Section 307(b) essentially is a listener-centric consumer statute rather than a broadcaster-centric mandate designed to promote spectral efficiency.

Revised Priority 3 Showing: First Local Service in A Community Located Near an Urbanized Area.  The most important change to the FCC’s rules is the rebuttable presumption that any proposal for first local service (Priority 3) for a community near an urbanized area that could place a principal community contour signal over at least 50% the urbanized area, or could be modified to place such coverage, will be presumed to serve the entire urbanized area rather than the proposed community.  This presumption may be rebutted by a compelling showing:  (1) that the proposed community is truly independent of the urbanized area; (2) of the community’s specific need for an outlet for local expression separate from the urbanized area; and (3) the ability of the proposed station to provide that outlet. 

The required showing can be based on the existing three-prong test established in Faye & Richard Tuck:  (1) the degree to which the proposed station will provide coverage to the urbanized area; (2) the size and proximity of the proposed community to the central city of the urbanized area; and (3) the interdependence of the proposed community of license and the urbanized area.  The FCC has heightened the scrutiny of factors in support of the third prong.  For example, applicants must submit evidence of the number of local residents who work in the community, not merely extrapolations from commute times or listing local business in the community.  Similarly, the application must include evidence that the community’s residents perceive themselves as separate and distinct from the urbanized area, rather than statements to that effect from town officials or business leaders.  In addition to demonstrating independence, a compelling showing sufficient to rebut the urbanized area presumption must also include evidence of the community’s need for an outlet of local expression.  Examples could include the community’s rate of growth, the existence of substantial local government necessitating coverage, and physical, geographical or cultural barriers separating the community from the remainder of the urbanized area. 

Revised Public Interest Showing (Priority 4).  In determining whether a proposed allotment betters serves the purposes of Section 307(b) under Priority (4), the FCC will look favorably upon proposals emphasizing service to underserved areas; i.e., those receiving fewer than five aural services.  A proposal to provide service to a third, fourth and/or fifth aural service to at least 25% of the population in the proposed primary service area, provided the proposed community of license has two or fewer local transmission services, will receive a dispositive Section 307(b) preference under Priority (4). 

The table below compares the rule changes for Priority 3 and Priority 4 for proposals for new AM services, for new FM services and for changes in communities of license: 


Priority 3

(first local transmission service)

Priority 4

(other public interest matters)





New AM Service Applicant

Station proposing 1st local service presumed to serve Urbanized Area (“UA”) if contour covered at least 50% of the UA; rebuttable by Tuck showing.

Greater presumption of service to UA; more detailed Tuck showing now required.

Could establish P4 by gains in areas and population and/or more than de minimis service to underserved areas.

Must propose a 3rd, 4th or 5th reception service to at least 25% of the population within the proposed primary service area. The community of license must have two or fewer local transmission services.

Can demonstrate P4 by gains in area and population but only if there are no underserved areas.

New FM Service Applicant

Station proposing 1st local service presumed to serve UA if contour covered at least 50% of the UA; rebuttable by Tuck showing.

Greater presumption of service to UA; more detailed Tuck showing now required.

Could establish P4 by gains in areas and population and/or more than de minimis service to underserved areas.

Must propose a 3rd, 4th or 5th reception service to more than a de minimis population within the proposed primary service area.

Can demonstrate P4 by gains in area and population but only if there are no underserved areas.

Petitioner for Change in Community of License

Station proposing 1st local service presumed to serve UA if contour covered at least 50% of the UA; rebuttable by Tuck showing.


Greater presumption of service to UA; more detailed Tuck showing now required.

Acceptable P4 showings could include gains in areas and population and/or more than de minimis service to underserved areas.

Proposal may not create a white or grey area. 

High bar to proposals that create an underserved area to more than 15% of the population or seek removal of a second local service from a community with a population of 7,500 or greater.

Must propose a 3rd, 4th or 5th reception service to at least 25% of the population within the proposed primary service area.

Can demonstrate P4 by gains in area and population but only if there are no underserved areas.

Proposals for New AM Service.  In considering competing proposals to provide new AM service, the FCC will apply the new rebuttable presumption of service to an urbanized area along with the revised Priority (4) showing. The determination of whether a proposal could cover 50% or more of an urbanized area will be limited to a consideration of minor modifications to the proposal, without changing the proposed antenna configuration or site, and the spectrum availability as of the close of the filing window.  If the FCC cannot make a 307(b) determination among competing applicants using these criteria, the FCC will make the selection using an auction process.  The FCC will not apply these new procedures to pending applications for new AM stations and major modifications to AM stations filed in the 2004 AM Auction 84 filing window.  The FCC will however apply these new procedures to any other pending applications.

Proposals for new FM Allotments.  In considering competing proposals for new FM service, the FCC will apply the new rebuttable presumption of service to an urbanized area along with the revised Priority (4) showing provided coverage is to more than a de minimis population.  The determination of whether a proposal could cover 50% or more of an urbanized area is more expansive for new FM allotments than new AM allotments.  The applicant must certify that there are no existing towers in the area to which, at the time of filing, the applicant’s antenna could be relocated pursuant to a minor modification application to serve 50% or more of the urbanized area.  If the revised Priority (4) does not apply, then the FCC considers raw population totals in support of Priority (4).  These new rules will not apply to any non-final FM allotment proceedings, including “hybrid” coordinated application/allotment proceedings.  The revised procedures will apply to all pending petitions to amend the FM Table of Allotments and to all other open FM allotment proceedings and non-final FM allotment orders. 

Proposals to Change Community of License.  The FCC’s strictest requirements will apply to existing broadcast stations seeking to change their community of license.  The FCC will apply the rebuttable presumption of service to an urbanized area along with the revised Priority (4) showing.  Proposals that would create a white or grey area would be prohibited.  The FCC would strongly disfavor any change that would result in the net loss of a third, fourth or fifth reception service to more than 15% of the population in the station’s current protected contour.  Applicants must not only set forth the size of the populations gaining and losing service but also the number of services those populations will receive if the application is granted and an explanation of how the proposal advances the revised Section 307(b) priorities.  The FCC will strongly disfavor any proposed removal of a second or local transmission service from a community of substantial size (with a population of 7,500 or greater).  These procedures will apply to any pending applications to change community of license. 

The FCC’s new procedures have several problems.  First, the agency presumes a problem where none exists in light of existing protections against the migration of radio stations from rural to urban markets.  New and existing stations have limitations on their ability to migrate into urbanized areas due to the FCC’s technical rules relating to mileage separation, city-of-license coverage, prohibitions against removing a sole first local service from a community, and restrictions on the filing of contingent applications. 

Moreover, the FCC does not consider the population of the urbanized area in adopting its new policies.  An “urbanized” area can have as few as 50,000 people but is treated under the rules the same way as one with hundreds of thousands, or even millions, of people.  The technical and policy restrictions already in place make it extremely difficult for an existing or new station to be located in one of the larger urban markets.  The new policies now will make it extremely difficult to relocate stations to the smaller or newer urbanized markets. The FCC also does not consider the population migration that has occurred over the past several decades.  Instead, the FCC would seem to prefer to lock radio stations in to their current communities, restricting a station’s ability to improve their service to better serve the public.  It is ironic that in adopting its policies for expanding broadband service, the FCC seeks to reclaim spectrum under the guise of promoting spectrum efficiency but in its new rules implicitly reject spectrum efficiency as an important objective for broadcast services. 

The FCC does not hide its preference for auctioning broadcast spectrum to the highest bidder instead of placing greater emphasis on Section 307(b) determinations.  The auction process works against the FCC’s goals of increasing broadcast ownership by minority and females. Further, the FCC fails to consider the considerable time between the initial proposal for a new AM or FM broadcast station and the auction of the station – a time lapse where changed economic conditions and business plans can affect construction and operation of the new station.  Case in point: Auction 91 will auction 144 new FM station construction permits, 37 of which are holdovers from the prior auction where no winning bid was placed.  This underscores the lack of interest of certain allotments made to rural areas. 

The FCC’s new procedures also are tilted against relocating new or existing radio stations near or within urbanized areas.  Concerned with the alleged migration of new and existing radio stations from rural markets to urbanized markets, the FCC creates roadblocks and imposes high costs for parties interested in a station near or within an urbanized area.  The new Tuck showings impose a financial burden that will deter many applicants from proceeding. 

In short, the new rules represent a missed opportunity to adopt a balanced approach between serving rural and urbanized areas.  Broadcasters must have the flexibility to go where the people go.  Sadly, the FCC’s new policies work against the public’s interest.

FCC Fines Broadband Operator for Causing Interference to TDWR Operations; Readies Rulemaking Proceeding

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 AyustarTDWR 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.

FCC Brings "Super Wi-Fi" Closer to Reality in TV White Spaces

While many of us in the Washington, DC area were dealing with white spaces of a different kind, the Federal Communications Commission was taking two important actions to bring closer to reality the use of TV white spaces for wireless broadband service. First, four months after releasing its new rules, the FCC finally adopted an order "conditionally selecting" nine companies to be administrators for the geolocation database that will be used to identify available and unused TV channels. Second, the FCC granted an experimental license to Rini Coran, PC client Carlson Wireless Technologies Inc. (CWT) to deploy a broadband network on white space channels within the Yurok Reservation along the scenic Klamath River in Northern California.

In the database order, the FCC approved these companies to act as database administrators:

All of these companies had submitted requests to be selected for the administrator role. Each entity will have until February 28, 2011 to amend its proposal to comply with the new rules adopted in September. The selected companies also will need to attend mandatory workshops -- the first of which will be March 10, 2011 -- and to work closely with the FCC "to ensure competency, consistency and compliance" with the rules. Each administrator must trial its database for at least 45 days before it can make its database available for actual use by TV bands devices. The administrators will be subject to a five-year term running from the date on which the FCC announces that a particular database is publicly available.

The FCC intends to exercise careful supervision over the databases. In addition to technical compliance, the administrators are subject to privacy and security rules and may not engage in discriminatory or anti-competitive behavior.

Under the experimental license granted to CWT, the Yurok Tribe will be the first Native American tribe in the nation to take advantage of white spaces. Notably, the FCC's National Broadband Plan identified white spaces as presenting a significant opportunity for provision of broadband service to Tribal lands. With this experimental license, CWT joins the white space ecosystem and signals plans to become a major player.

Not that anyone here in the Washington area is wishing for more snow, but if a large dose of the white stuff is what it takes to get the FCC to act on white spaces, let it snow, let it snow, let it snow!

TV White Spaces: Finishing Touches Near as FCC Reconsiders Rules that Preclude Rural Deployment

            Finishing the TV white spaces proceeding has proved to be a bit of a challenge for the Federal Communications Commission.  After more than two years from its adoption of initial rules, the FCC released the second TV white spaces order on September 23, 2010.  The rules recently took effect on January 5, 2011, raising hope that new services would soon follow.  Unfortunately, the FCC still needs to add a few coats of paint to its white spaces rules before we see wide-scale commercial broadband deployments, although the number of action items has dwindled.

      "[T]he rules effectively preclude fixed white space operations in large portions of the country."

     At the top of the list: a few rules are subject to reconsideration.  Most prominently, a consortium of trade associations, database administrator applicants and equipment manufacturers led by the Wireless Internet Service Providers Association (“WISPA”), a Rini Coran, PC client, asked the FCC to relax its tower height and out-of-band emission rules for fixed white space devices.  In the September 2010 order, the FCC limited the maximum height of tower sites to 76 meters above average terrain (HAAT).  Together with the 30-meter tower height limit adopted in November 2008, the rules effectively preclude fixed white space operations in large portions of the country.  As shown in the maps provided by Comsearch at Appendices B and D in WISPA's FCC filing, the areas affected by the height restrictions are, not surprisingly, rural, hilly and mountainous areas of the country where white space spectrum could otherwise be used to provide much-needed broadband service – indeed, the intended targets of white space services.

            The petitioners asked the FCC to adopt a 250-meter HAAT limit while also increasing the keep-out zones for co-channel and adjacent-channel TV stations to ensure that there would be no increase in harmful interference to broadcasters.       

            The September order also tightened the spectral mask for adjacent channels, limiting the amount of usable spectrum and adding cost to equipment and deployment.  Led by Motorola, petitioners asked the FCC to relax the emission mask to reduce costs and promote spectral efficiency, while increasing the adjacent-channel keep-out zones to protect incumbent TV stations. 

             Also on the white spaces wish list: the FCC still has not released its long-awaited order designating geo-location database administrators and establishing final database governance rules.  Long anticipated since the release of the second TV white spaces order, the would-be administrators still have no marching orders.  No doubt, the FCC’s Office of Engineering and Technology has been pre-occupied with net neutrality and a spate of other important orders. The reality is that the FCC can only authorize experimental operations until the database administrators are selected and ready.  The good news is that OET is expected to issue its order any day now, so hopefully that roadblock soon will be in the rear-view mirror.

             Not far behind is the certification of TV white space equipment.  Because of the need for equipment to have geo-location capabilities that are linked to the databases, the FCC cannot certify equipment until the databases are established and certification procedures finalized.  No word on how long the certification process will take, but hopefully that can be measured in days and weeks and not months.

             Fortunately, the FCC only has a few issues to address in the reconsideration phase, so the proposed changes to the height and emission mask rules likely can be implemented soon.  Even so, once the database administration process is set and equipment is certified, white space deployments can begin right away in those parts of the country where the HAAT and mask issues are not impediments. 

Act Now! FCC to Auction New FM Radio Stations

Less than one month remains until the close of the filing window to participate in the Federal Communications Commission’s upcoming auction of 144 FM broadcast construction permits to the public.  The auction is scheduled to begin on April 27, 2011.  Applicants interested in participating in the auction must file an application with the FCC between January 31, 2011 and February 10, 2011.

The construction permits are associated with so-called “vacant” FM allotments. The FCC has assigned certain FM channels to certain communities via allotment, and the FCC will auction the rights to build FM radio facilities using these channels.  Of the 144 vacant FM allotments in this auction, 37 are holdovers from the last FM auction.  This means that no party placed the minimum bid for these vacant allotments before the last auction closed. The minimum bid for the majority of the allotments is $25,000 or less.  Only 14 of the allotments have minimum bids of at least $60,000. Seven allotments have minimum bids of $100,000. Three allotments have minimum bids of $60,000 and four allotments have minimum bids of $75,000.

The application must include ownership information about the applicant; identify the vacant allotments for which the applicant intends to bid, and whether the applicant has any agreements with other parties regarding the auction.  Under the FCC’s anti-collusion rules, applicants are prohibited from discussing their applications, including bidding strategies, with other applicants in the auction, unless each applicant identifies the other in their application.  This prohibition applies to each applicant until the auction is closed.

Time is of the essence.  Although the auction is more than three months away, interested parties must file their applications for the auction by February 10.  These applications are not placeholders for the auction; the application locks in the applicant’s qualifications to bid in the auction, identifies the allotments on which the applicant may bid, and any bidding arrangements applicants might have with third parties.  Applicants will not be able to amend their applications after February 10 to improve their situation in the auction.  Advance preparation now is necessary.

Incentive Auctions of TV Spectrum for Broadband May End Up Not So Voluntary

The FCC has begun its long anticipated rule making proceeding to reallocate 120 MHz of TV spectrum from wireless broadcast to wireless broadband services. Just a few days ago, the Commission voted 5-0 to consider three different approaches for reclaiming this spectrum, relying mostly on voluntary participation by TV broadcasters who wonder openly how truly voluntary this process will be if not enough TV stations agree to trade spectrum for cash and possibly, a smaller slice of shared spectrum to continue broadcasting.

The first approach is to encourage broadcasters to return 120 MHz of spectrum to be auctioned for wireless broadband service, with broadcasters receiving some portion of the auction proceeds. These incentive auctions would require Congressional approval. The second approach is adoption of rules to encourage two or more television stations to share the same 6 MHz TV channel. The third approach is adoption of new engineering rules to improve the VHF band with the hope that some television broadcasters would relinquish their stations in the UHF band in exchange for stations in the VHF band. The FCC likely will order TV spectrum auction winners to pay the costs to repack the TV Band to clear contiguous blocks of spectrum to auction.

Broadcasters are less than enthusiastic about the third approach because of concerns about impulse noise from electrical power lines, signal quality issues in the VHF band and the costs associated with moving a station from the UHF to the VHF band. The Commission believes the continued growth and importance of wireless broadband services requires allocation of spectrum from other services. The Commission has identified television broadcast spectrum as the most suitable candidate, arguing that television broadcasters do not use their spectrum efficiently, that less than 10% of the nation receives broadcast television through over-the-air reception and that broadcasters will still have 300 MHz of spectrum remaining after the FCC takes away and auctions the reclaimed spectrum.

TV stations question whether the Commission’s proposals will degrade the quality of HD signals because shared spectrum is insufficient to broadcast in HD. It is unclear what costs TV stations would have to bear (and in this economy, the costs of the auction transaction itself could be daunting). There is also fear that this approach could undermine the legal basis for the must carry/retransmission regime. Fundamentally, many question the necessity of reclaiming that much spectrum, pointing out that the demand for spectrum is greatest in the largest metropolitan markets where TV stations are not likely to voluntarily participate in auctions. The quickest path to freeing up more spectrum for broadband applications would be to give broadcasters more flexibility to use their spectrum for broadband services by reforming the technical rules and allowing secondary leasing rules to govern rather than the outmoded command and control model now favored by FCC regulators only with respect to broadcasting.

In an ironic twist, broadband providers are now touting the benefits of a “broadcast type” service over broadcast spectrum. This is allegedly the most efficient use of spectrum to deliver video programming consumers are demanding in greater numbers. At the end of the day, broadcasters are expected to go along with the proposals so long as they are truly “voluntary.” As anyone who has negotiated voluntary conditions as part of an FCC merger review knows, some things in DC are more voluntary than others.


Let Me In, Innovation Man: FCC Revisits Experimental Licensing

The FCC has announced new proposals to promote investment and create jobs in wireless broadband. On November 30, the FCC announced at its open meeting that it sought to boost innovation in the telecommunications marketplace and to help restore the country’s prominence in research and development through two new proceedings.

In the first proceeding, citing past achievements such as Wi-Fi and PCS that grew out of experimental licensing, the FCC is proposing to overhaul its experimental licensing rules to streamline the process by which new devices and technologies can move from R&D to deployment. Utilizing a new license called a “program license,” the FCC will establish “innovation zones” -- specifying areas where experiments can be conducted without command and control licensing. The FCC also will make it easier for universities and labs to conduct experiments and will enable health care institutions to obtain program licenses for telemedicine research. The FCC also signaled that it would ease some of the restrictions surrounding market trials to allow consumers to have more access to new products. Interestingly, Commissioner Baker suggested that improved experimental licensing rules could provide some answers to improve spectrum efficiency in the TV bands.

For the second item, the FCC adopted a Notice of Inquiry on “dynamic spectrum access” and “opportunistic” uses of spectrum to promote more efficient spectrum use. “Dynamic” access refers to the availability of spectrum in certain locations for brief intervals and whether radio technologies can evolve to take advantage of these dynamic spectrum opportunities and thus promote wireless broadband. The NOI also invites public comment on the benefits of mandating a database model – such as the white space geo-location database – to promote efficiency. The NOI will also look at ways the FCC’s secondary markets rules could be enhanced by allowing opportunistic or “spot” use of spectrum.

Taken together, these items demonstrate the FCC’s ongoing push to increase broadband opportunities and to boost availability and efficient use of spectrum resources. These proceedings may offer new opportunities particularly for colleges and universities to move the state of the art forward.


STELA! FCC Implements Satellite Television Extension and Localism Act

Following the passage by Congress earlier this year of the Satellite Television Extension and Localism Act (STELA, for short), the FCC adopted new rules to provide satellite subscribers with greater flexibility to receive certain television stations from other markets.

The FCC revised its rules to make it easier for satellite subscribers to receive a significantly viewed (SV) out-of-market station. Previously, satellite subscribers could receive an out-of-market SV station with the same network affiliation as the local in-market station only if the satellite subscribers received the local in-market network station. Now satellite subscribers need only receive the satellite carrier’s local-into-local service package.

These changes may tilt retransmission consent negotiations in favor of the satellite carriers, who could favor an out-of-market SV station to the in-market station based on the amount of retransmission consent fees that are negotiated. Many broadcasters have entered into agreements that provide for little or no compensation for out-of-market subscribers.

The FCC reasons that subscribers would prefer receiving the in-market station to the out-of-market SV station, that satellite carriers will negotiate in good faith with in-market stations, and that SV stations usually are available only in a portion of the market. Time will tell, but there is good reason to be skeptical. Satellite carriers will inevitably use SV stations as a substitute, instead of a supplement, to an in-market station if any disputes arise about compensation for retransmission consent. If this happens, broadcast localism goals of the FCC will be undermined and Congress may be called back to the table to clean up the mess.

The FCC must deliver to Congress a report on in-state broadcast programming by August 27, 2011. The FCC seeks comment and data from the public in preparing this report.