FCC Enforcement Action Highlights Interference Risk for Operators of Unlicensed Wireless Networks

By Nickolas Milonas and Marty Stern

The Federal Communication Commission recently issued a Notice of Apparent Liability finding that Towerstream Corporation repeatedly interfered with the Federal Aviation Administration’s Terminal Doppler Weather Radar systems through operations of its Unlicensed National Information Infrastructure transmissions systems.  TDWR systems are used near airports to monitor weather conditions that could pose risks to aircraft.  The FCC noted, any “interference [with TDWR systems] poses a clear hazard to air traffic safety and requires aggressive enforcement, proposing a penalty of $202,000.

Towerstream provides “advanced, high-speed Internet access to businesses in 12 markets” and “owns, operates, and leases Wi-Fi and Small Cell rooftop tower locations to cellular phone operators, tower, Internet and cable companies and hosts a variety of customers on its network” using U-NII spectrum.

In 2003, the FCC allocated additional spectrum for unlicensed use in the 5 GHz band and established the U-NII service to encourage and facilitate the deployment of short-range, high-speed wireless networking communication.  The FCC’s rules allow for certain devices that use low-level radiofrequency signals to operate without individual licenses in the 5 GHz band, as long as such operations does not cause harmful interference to licensed services and the devices do not generate emissions above a certain level.

In Towerstream’s case, the FCC had been investigating various complaints since 2009 stemming from alleged TDWR interference at major international airports in New York, Chicago, Miami, and Fort Lauderdale.  In 2010, the FCC also released a memorandum, describing steps that U-NII operators could take to eliminate TDWR interference.  The NAL alleges that despite repeated warnings, FCC guidance, and a meeting with FCC staff in 2011 to discuss corrective measures, Towerstream’s activities still resulted in TDWR interference.   

While the FCC has taken steps to allocate spectrum for unlicensed use and encouraged the development of unlicensed devices, it has recently dealt with a number of situations where U-NII devices have caused TDWR interference.  While fines in similar enforcement actions have typically been $25,000, this case shows the potential risk that operators face if their unlicensed devices cause harmful interference to licensed operations.

New FCC Proposed Rules Would Speed Deployment of Small Cell and Distributed Antenna Systems

By Jenny Paul, Marc Martin, and Marty Stern


As part of its efforts to spur the construction of new wireless infrastructure, the FCC recently released proposed rules and requested comment on ways to expedite the environmental review process for small cell, Distributed Antenna System, and other small-scale wireless systems.  Increasingly, such systems are used to increase wireless broadband coverage in areas that have been difficult to reach from traditional deployments.  Comments are due 60 days from date of publication in the Federal Register, which means the due date for comments will likely fall in early December.

 The small-scale wireless technologies targeted by the proposed rulemaking use a large number of smaller antennas placed at lower heights, usually on poles or rooftops, and supported by compact radio equipment.  The FCC rules that currently govern the environmental and historic preservation review of wireless deployments, including a 2004 National Programmatic Agreement on historic preservation review for new antenna structures under Section 106 of the National Historic Preservation Act of 1966, were adopted with an eye toward large-scale deployments on communications towers or other tall structures.  While FCC rules already exempt from most environmental review the collocation of antennas on existing antenna towers and buildings, the proposed rules would expand that exemption to include existing structures such as utility poles, water tanks, light poles, and road signs.

In addition, the NPRM proposes the adoption of a new rule to specifically exempt DAS, small cells, and other small-scale wireless facilities from most environmental review, including Section 106 review under the NPA.  The rule would be broader than the collocation proposal described above, because it would cover the construction of new support structures for these technologies, as well as collocation of the technologies on existing structures.  On this front, the FCC seeks input from commenters on how to define the scope of a blanket exclusion, while ensuring that technologies eligible for the exclusion have no more than de miminis effects on the environment and historic properties.

The NPRM also proposes the creation of a permanent exemption from the pre-construction environmental notification process for select temporary antenna towers.  The permanent exemption would track an interim waiver currently in effect for temporary towers that have certain characteristics — very short duration, height limits, minimal or no excavation, and no lighting — which minimize their potential to cause significant environmental effects.  According to the FCC, the exemption would streamline the offering of broadband and other wireless services during major events and unanticipated periods of localized high demand.

FCC Proposes New Broadband Spectrum for Small Cell, Shared Use

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.