TMT Law Watch : Washington, DC Telecom & Technology Attorneys & Lawyers : K&L Gates Law Firm

By Nick Milonas, Marc Martin, and Marty Stern

The Federal Communications Commission unanimously approved a new set of rules intended to facilitate deployment of wireless signal boosters by consumers and businesses, while avoiding potentially disruptive interference to mobile networks. Signal boosters are used to amplify signal strength between wireless devices and wireless networks. Their increased use raised interference concerns for wireless networks, which are addressed through new interference safeguards that manufacturers will be required to incorporate into boosters. Nationwide carriers, along with regional and rural carriers, support the new rules—provided that the boosters comply with the technical specifications designed to prevent interference.

As part of the new rules, the FCC addressed two classes of mobile signal boosters—consumer and industrial. Consumer boosters must meet certain “Network Protection Standard” requirements to prevent interference. Consumers will need to register their boosters with their providers prior to use. While most providers have already volunteered their consent for consumer use, some booster manufacturers objected to this requirement as “anti-consumer.” Industrial boosters, subject to licensing and a different set of regulations, are typically used in stadiums, airports and other public places.

The new rules recognize the importance of boosters in underserved and rural areas, in indoor environments such as buildings and hospitals, as well in conjunction with public safety first responders. According to the FCC, the new rules will remove uncertainty surrounding the manufacturing and use of signal boosters and promote investment and use of the technology.

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By J. Bradford Currier and Marc Martin

The spectrum band used for mobile wireless service would be extended by 10 MHz under a Notice of Proposed Rulemaking recently released by the Federal Communications Commission. Under the proposal, the FCC would license the so-called “H Block” spectrum for flexible use through a system of competitive bidding expected to occur in 2013. The licensing of the H Block was a requirement of the Middle Class Tax Relief and Job Creation Act of 2012, and the proceeds from the H Block auction will be used to support the buildout of a nationwide interoperable public safety network and reduce the national deficit. The FCC stated that its proposal is necessary to meet the growing demand for wireless broadband and follows other recent FCC efforts to make more wireless spectrum available.

Under the proposal, the FCC would license H Block spectrum for use in exclusive geographic areas. H Block licensees would be required to provide signal coverage and offer service to: (1) at least 40% of the population in each licensed area within four years and (2) at least 70% of the population in each licensed area at the end of a 10-year license term. New licensees would be required to reimburse a portion of the costs incurred in prior efforts to clear incumbents from the H Block and may disaggregate, partition, and lease their spectrum, subject to the FCC’s rules. Mobile and low-powered fixed transmissions would be authorized in the lower H Block spectrum, with base and fixed transmissions permitted in the upper H Block spectrum.

The FCC seeks comment on the above proposals as well as the appropriate interference mitigation techniques to ensure that the lower H Block spectrum does not cause interference to existing adjacent wireless operations. The FCC asserted that the power and emission limitations offered in its proposal would be sufficient to ensure that new and existing licensees can operate harmoniously but reserved the right to allocate the lower H Block spectrum to unlicensed use should interference issues become unmanageable. 

Comments on the proposal are due by February 6, 2012, with reply comments due by March 6, 2013.

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By J. Bradford Currier, Marc Martin, and Marty Stern

New spectrum may become available for shared, small cell broadband use in a new a “Citizens Broadband Service” under a Notice of Proposed Rulemaking recently released by the Federal Communication Commission. The proposal would reallocate 100 MHz of spectrum in the 3.5 GHz Band for shared use using small cell technologies and implements recommendations made earlier this year by the President’s Council of Advisors on Science and Technology. The FCC stated that increased spectrum sharing is necessary as demand for wireless broadband outpaces the availability of new spectrum. The FCC seeks comment on the structure and implementation of the Citizens Broadband Service and whether adjacent spectrum should be included in the proposal to create a larger contiguous spectrum block.

The proposed rules would authorize small cell broadband systems using low-power wireless base stations that are designed to cover targeted indoor or localized outdoor areas, such as homes, stadiums, shopping malls, and hospitals. The FCC noted that small cell stations can be easily deployed at relatively low cost to greatly increase data capacity and fill in coverage gaps created by buildings and terrain. Building on the TV White Spaces model, incumbent users would be protected through the use of geolocational databases that would allow spectrum sharing in geographic areas where incumbent systems are not operating.

The FCC’s proposal would divide spectrum users into three tiers. First, the Incumbent Access tier would include authorized federal users and incumbent satellite licensees. These incumbents would be afforded protection from all other users in the 3.5 GHz Band. Second, the Protected Access tier would include critical-use facilities, such as hospitals, utilities, government facilities, and public safety entities that would be ensured access to a portion of the spectrum in certain designated locations. Third, the General Authorized Access tier would include all other users, including consumer and business users, wireless ISPs, and licensed commercial wireless providers, all of whom would operate in the 3.5 GHz Band subject to protections for the other tiers. The FCC seeks comment on a number of issues, including whether the General Access Tier should be subject to a light licensing regime similar to a registration requirement, potential interference mitigation techniques, and details on the geolocational database and how it will regulate access to the band.

Wireless broadband providers praised the FCC’s proposal, stating that spectrum sharing will enable increased coverage in rural and underserved areas and provide start-up companies with a testing ground for new technologies. Supporters of unlicensed spectrum use suggest that available interference mitigation techniques will ensure that incumbent users and critical care facilities can be protected, while opening up additional spectrum for commercial and public use. However, in reports earlier this Fall on opening up the 3.5 GHz band to unlicensed use, industry observers noted that spectrum sharing in the 3.5 GHz Band poses a number of technical challenges for commercial wireless providers that may take years to resolve before the spectrum can be deployed as an adjunct to their core wireless services.

Comments on the proposal are due by February 20, 2012, with reply comments due by March 22, 2013.

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By J. Bradford Currier, Marc Martin, and Marty Stern

Recognizing the ubiquitous nature of wireless devices in modern life, the Federal Aviation Administration has announced the establishment of a government/industry working group which will reexamine the rules governing passenger use of electronic devices during flight. Current federal regulations ban mobile phone use during flight, as well the use of laptops and other personal electronic devices below 10,000 feet, due to concerns that the devices could interfere with critical aircraft instruments. Critics suggest that the current rules are too restrictive and overstate the risks of airplane interference from personal electronic devices.

The working group will undertake a six-month inquiry into the proper technological standards for in-flight personal electronic device use and present its recommendations to the FAA. Critically, the group will not consider the airborne use of mobile phones for voice communications. The working group will be formally established in the fall and include “representatives from the mobile technology and aviation manufacturing industries, pilot and flight attendant groups, airlines, and passenger associations.”

The FAA also released a Request for Comments (responses due 60 days after publication in the Federal Register) seeking public input on the current restrictions on in-flight personal electronic device use. Specifically, the FAA seeks comment in nine areas:

• Operational, safety, and security challenges associated with expanding personal electronic device use.
• Data sharing between aircraft operators and manufacturers to facilitate authorization of personal electronic device use.
• Necessity of new certification regulations requiring aircraft designs to tolerate personal electronic device emissions.
• Information-sharing for manufacturers who have demonstrated electronic device/aircraft compatibility to facilitate new and modified aircraft designs. 
• Development of industry standards for aircraft-friendly devices or aircraft-compatible modes of operation. 
• Publication of aircraft operators’ personal electronic device policies.
• Restrictions on personal electronic device use during takeoff, approach, landing, and abnormal conditions to avoid distracting passengers during safety briefings and prevent possible passenger injury.
• Development of standards for systems that actively detect potentially hazardous personal electronic device emissions.
• Technical challenges associated with personal electronic device use, and support from device manufacturers to commercial aircraft operators.

Update:  The FAA’s Request for Comments has been published in the Federal Register.  Comments will be accepted until October 30, 2012.

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By J. Bradford Currier and Marc Martin

The Federal Communications Commission released a Working Paper examining how to better manage interference among licenses operating in adjacent spectrum. Prepared by senior economists at the FCC’s Office of Strategic Planning and Policy Analysis, the Working Paper discusses how establishing a “market” for interference rights could lead to more efficient transmitting power constraints, out-of-band emission limits, and other service rules designed to handle interference between nearby licensees. The Working Paper represents a pure market-based approach to addressing interference issues, where the FCC would have only minor input regarding licensing. The release of the Working Paper comes at a time when the FCC is addressing a number of interference-related issues in pending proceedings.

The Working Paper suggests that implementing marketable interference rights may help entities operating in adjacent spectrum balance the desires of some licensees for more signal strength with the interference concerns of nearby licensees. The Working Paper presents a model where an existing licensee seeks authorization from the FCC to increase its transmitting power. While the increase in transmitting power would benefit the requesting licensee, the model assumes it would also result in harmful interference to adjacent licensees. Under current rules, the FCC would develop a record assessing the public benefits alleged by the requesting licensee and the interference claims of the nearby licensees, and render a decision regarding whether the authorization should be granted.  

Instead of an inquiry led by the FCC, the Working Paper proposes two market solutions allowing the licensees to tell the FCC how much they value their spectrum. Under the first scenario, the requesting licensee must bid for the right to increase its transmission power, while the nearby licensees must bid for the right to preserve the status quo. If the requesting licensee’s bid exceeds the combined sum of the nearby licensees’ bids, then the authorization should be granted. This scenario appears to suffer from several flaws. First, as the Working Paper recognizes, this scenario may lead to a “free rider” issue in which each nearby licensee has the incentive to bid low so long as another nearby licensee would bid high. Second, it appears to allow deep-pocketed new entrants to force interference on smaller nearby licensees. Third, assuming the FCC would put the incumbents in the position to pay to remain free of interference, it may even give rise to a “takings” constitutional concern. 

Under the second scenario, the nearby licensees would own the right to prevent the requesting licensee from increasing its transmission power unless the requesting licensee purchased the right from the nearby licensees. If the requesting licensee offers a price that exceeds the amount demanded by the nearby licensees, then the authorization should be granted. Although this scenario resolves the “free rider” problem presented by the first scenario, the nearby licensees in the second scenario have the incentive to artificially inflate the asking price for their interference rights.

The Working Paper applies each market scenario to a hypothetical auction of wireless spectrum and finds that market solutions can produce efficient service rules under certain circumstances. However, the Working Paper notes that the assumptions underlying the market solutions may not hold “in the field,” where licensees may exaggerate their spectrum needs or interference concerns. The Working Paper calls for further research on how to ensure that all spectrum stakeholders receive sufficient information to reach an efficient allocation of spectrum rights.

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By J. Bradford Currier

The Federal Communications Commission’s recent Notice of Proposed Rulemaking seeks comment on how to best achieve interoperability in the Lower 700 MHz Band. The NPRM responds to a 2009 petition for rulemaking filed by an alliance of small regional wireless providers operating in the lower A Block of the 700 MHz Band. The petitioners alleged that the mobile devices currently developed for major wireless carriers do not support operations in the lower A Block. The NPRM focuses on four key issues:

(1)        Interoperability Challenges

Supporters of the rulemaking assert that the lack of interoperability in the Lower 700 MHz Band prevents lower A Block licensees from using popular mobile devices and negotiating affordable roaming agreements. Opponents of the rulemaking respond that interoperability requirements would expose licensees in the nearby lower B and C Blocks to harmful interference and delay the deployment of mobile devices. The NPRM asks whether achieving interoperability in the Lower 700 MHz Band would improve lower A Block licensees’ access to new mobile devices and seeks data regarding previous mobile device and roaming agreements between lower A Block licensees and major device manufacturers. 

(2)        Interoperability Implementation            

Before imposing federal interoperability mandates, the NPRM asks whether the Lower 700 MHz Band licensees will be able to develop a voluntary solution in a timely manner. The FCC seeks information relating to existing interoperability agreements between the Lower 700 MHz Band licensees as well as estimates regarding how long it would take an industry-wide accord to develop. Although the FCC would prefer an industry-led solution, it reserved the right to take direct action and require licensees to use mobile devices that can operate across the entire the Lower 700 MHz Band. Under an FCC-led solution, Lower 700 MHz Band licensees would have two years to achieve interoperability. The FCC would also “grandfather” the use of non-interoperable devices produced prior to the implementation of the proposed rules. The NPRM invites commentators to assess the costs and benefits of an industry-led voluntary solution versus top-down FCC regulation. The FCC also asks whether its interoperability inquiry should be expanded to encompass the entire 700 MHz Band.

(3)        Mobile Broadband Deployment

The NPRM suggests that Lower 700 MHz Band interoperability would spur competition in advanced broadband services, especially in rural areas. Opponents of the rulemaking argue that the interoperability requirement would impose unreasonable burdens on current Lower 700 MHz Band build-out plans, degrade mobile device performance, and require significant additional costs. The FCC seeks industry input on the effects of an interoperability requirement on mobile broadband deployment and device performance.

(4)        Legal Authority

The NPRM seeks comment on whether the FCC possesses sufficient regulatory authority to impose an interoperability requirement in the Lower 700 MHz Band. The FCC noted that it may regulate the contractual arrangements of wireless providers in order to prevent unjust and unreasonable discrimination. The FCC also referenced its authority to promote the timely deployment of advanced telecommunications technologies, modify wireless licenses, and manage the use of wireless spectrum.

Once the NPRM is published in the Federal Register, parties will have 60 days to comment. 

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By J. Bradford Currier

Under its recent Notice of Proposed Rulemaking and Notice of Inquiry, the Federal Communications Commission seeks to increase the supply of spectrum for mobile broadband use by permitting flexible use of 40 MHz of spectrum located in the 2 GHz Band currently licensed for Mobile Satellite Service. Specifically, the proposed rules would allow terrestrial mobile broadband service in what the FCC termed the “AWS-4 Spectrum,” located at 2000-2020 MHz and 2180-2200 MHz. The NPRM/NOI covers four key areas:

(1)         AWS-4 Spectrum Band Plan

The FCC would license AWS-4 Spectrum in paired 10 MHz blocks for a 10-year term and would allow a licensee holding two contiguous blocks of AWS-4 Spectrum to combine these authorizations into a single licensed block. The FCC seeks comment on whether the AWS-4 Spectrum band should be shifted up 5 MHz to 2005-2025 MHz or up 10 MHz and compressed to 2010-2025 MHz. Additionally, the NPRM asks for industry input regarding its licensing scheme and whether the FCC should separately license a service area to cover the Gulf of Mexico, which poses special interference challenges. 

In the NOI, the FCC seeks comment on an alternative band plan proposed by NTIA, which would create two new blocks of spectrum: (1) PCS-Extension Block and (2) AWS-Extension Block.  The PCS-Extension Block would cover 35 MHz consisting of existing MSS downlink spectrum located at 2180-2200 MHz and spectrum located at 1695-1710 MHz. The AWS-Extension Block would encompass 30 MHz consisting of existing MSS uplink spectrum located at 2000-2020 MHz, combined with spectrum located at 2020-2025 MHz and 1995-2000 MHz. The alternative band proposal would require the relocation of existing licensees and may require incentive auctions. 

(2)        Licensing Conditions and Obligations

The NPRM imposes no eligibility restrictions on AWS-4 Spectrum licensees. The proposed rules would license the AWS-4 Spectrum under Part 27’s flexible use rules, allowing the licensee to use the spectrum for any terrestrial use permitted by current frequency allocation regulations. Applicants for AWS-4 Spectrum licenses would not be required to choose between providing common carrier and non-common carrier services. Future licensees would be able to lease AWS-4 Spectrum under the secondary market transaction rules first established by the FCC in 2003. The NPRM seeks comment on whether licensees should be permitted to enter into de facto transfer lease arrangements or whether licensees should be limited to spectrum manager lease arrangements. 

AWS-4 Spectrum licensees would be subject to certain performance and construction requirements. First, within three years an AWS-4 licensee must provide signal coverage and offer service to at least 30% of their total AWS-4 population. Second, within seven years the licensee must provide coverage and offer service to at least 70% of the population in each of its license authorization areas. If the licensee fails to meet these obligations, then it may lose its AWS-4 Spectrum licenses. The NPRM seeks comment on these requirements, penalties, and appropriate means for assessing compliance.

(3)        Relocation and Cost Sharing

The NPRM establishes relocation and cost-sharing obligations on AWS-4 Spectrum licensees. New entrants would be allowed to relocate incumbent licensees and recoup a portion of these relocation costs from later entrants. The FCC proposed a sunset date for new entrants’ relocation obligations at 10 years after the issuance of the first AWS-4 Spectrum license. The cost-sharing plan would be administered by a clearinghouse, which would resolve relocation disputes and assess the amount of relocation costs recoverable by a new entrant in the AWS-4 Spectrum. The NPRM seeks comment on whether the AWS-4 Spectrum relocation and cost-sharing rules should differ from previous AWS proceedings and whether the proposed sunset date poses certain risks to entrants or incumbents.

(4)        Interference and Other Technical Issues

The NPRM suggested numerous technical rules designed to prevent interference to other licensees from AWS-4 Spectrum users. The proposed regulations would impose emission limits on AWS-4 Spectrum licensees and require licensees to protect incumbent MSS licensees from harmful interference. The proposed rules would also impose: (1) base station and mobile station power limits; (2) antenna height restrictions; (3) signal strength restrictions; and (4) international coordination requirements on terrestrial operations. The FCC seeks comment on the proposed interference mitigation measures and industry input regarding whether the FCC should impose special interference rules protecting GPS services. 

Once the NPRM/NOI is published in the Federal Register, parties will have 30 days to comment. 

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