New Mobile Broadband Spectrum Rules Adopted for H Block

By Nickolas Milonas and Marc Martin

The Federal Communications Commission recently adopted a Report and Order setting the rules to auction and license the H Block—ten megahertz of paired spectrum at 1915-1920 MHz and 1995-2000 MHz.  In the Middle Class Tax Relief and Job Creation Act of 2012 (the Spectrum Act), Congress directed the FCC to make more spectrum available for commercial use.  As part of that mandate, the FCC was directed to allocate and license the H Block by February 2015.  The H Block auction is expected to take place later this year or in early 2014, in advance of the 2015 deadline. 

The Report and Order largely adopted the FCC’s proposals from the H Block NPRM, which found that designating the upper and lower H Block bands for Personal Communications Services (PCS) mobile operations would not result in harmful interference to the adjacent PCS band licensees.  The Report and Order also adopted a “straight forward” band plan in which the upper H Block will be used for downlink operations and the lower H Block will be used for uplink operations.

The H Block is unique because it is the only spectrum identified in the Spectrum Act that is paired and already cleared of incumbent licensees (thanks to the prior relocation of Broadcast Auxiliary Service licensees by Sprint).  The Spectrum Act requires the proceeds from these spectrum auctions be used to fund FirstNet, the first high-speed nationwide network for emergency responders and public safety.  The H Block auction revenue could be a significant “down payment” towards the roll out of FirstNet.

Supreme Court's City of Arlington Decision Buttresses FCC Interpretations of its Own Authority

By Marc Martin

Last Monday, the US Supreme Court issued its opinion in City of Arlington v. FCC, clarifying a fundamental tenet of administrative law and, more specifically, ending a challenge local governments had brought to the FCC’s new “shot clock” provisions for wireless siting decisions (see our previous coverage here). In addition to upholding the FCC’s deadlines of 90 days to respond to applications for collocated tower projects and 150 days to respond to all other applications, the decision presents a clear reaffirmation of an agency’s authority to interpret the bounds of its own jurisdiction, which should strengthen the FCC’s hand in jurisdictional challenges to its authority (and that of other federal agencies).

The City of Arlington had argued that while an agency’s interpretation of its enabling act is entitled to deference under the framework established in Chevron, such deference should not extend to an agency’s interpretation of its own jurisdiction. Rather, it argued, granting deference to a federal agency on jurisdictional questions usurps the judiciary’s constitutional role of interpreting the scope and intent of legislative delegations of authority. Writing for the 6-3 majority, Justice Scalia did not agree, explaining that the City of Arlington’s perceived distinction between jurisdictional and non-jurisdictional questions is a “mirage” and “an empty distraction” because “every new application of a broad statutory term can be reframed as a questionable extension of the agency’s jurisdiction.” By contrast, Chief Justice Roberts, joined in the dissent by Justices Kennedy and Alito, echoed the City of Arlington’s fear that deference to an agency’s interpretation of the bounds of its own authority would worsen “the danger posed by the growing power of the administrative state.”  

In the end, the significance of this decision is fairly limited. It is consistent with the DC Circuit’s rule and numerous precedents which follow Chevron’s framework. Nevertheless, some public interest organizations and other analysts suggest this decision may greatly help the FCC (among other agencies) in challenges to its jurisdictional authority, as the FCC has already argued before the DC Circuit in the pending appeal of the FCC’s Open Internet (or Net Neutrality) decision. Undoubtedly, the FCC will continue to rely on this decision when defending its actions on jurisdictional grounds.

The author would like to thank summer associate Jonah Fabricant for his contribution to this post.

FCC Finds More Spectrum for Wi-Fi

By Nick Milonas

Yesterday, the Federal Communications Commission adopted a Notice of Proposed Rulemaking to free up spectrum in the 5MHz band for unlicensed Wi-Fi use. With this step, the FCC hopes to accelerate the growth and expansion of new high-speed Wi-Fi services, while reducing Wi-Fi congestion in the home and in public locations.

As part of the Middle Class Tax Relief and Jobs Creation Act of 2012, Congress mandated that the FCC explore options to open the 5MHz band for increased Wi-Fi use. The NRPM seeks to make up to 195 megahertz of additional spectrum (a 35% increase) available in the band for such purposes. The FCC hopes that manufacturers of unlicensed devices will take advantage of wider bandwidth channels to offer faster speeds to consumers and businesses. The NPRM also proposes a more-flexible regulatory environment to streamline existing rules and the device approval process.  

Comments are due 45 days after the NPRM’s publication in the Federal Register, which based on publication trends, may be early May. 

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.

FCC's Wireless Deployment "Shot Clock" Provisions Upheld

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

A federal appellate court recently upheld regulatory timetables for state and local governments to act on siting applications to build cell towers. The panel’s decision in City of Arlington v. FCC upheld the Federal Communications Commission’s “shot clock” provisions, which were adopted in a 2009 declaratory ruling. The FCC adopted the declaratory ruling in response to concerns that the government approval process unnecessarily delayed tower construction. Under the shot clock provisions, state and local governments have 90 days to review applications for collocated tower projects and 150 days to review other siting applications. If the shot clock expires without action by the government, applicants can file for court relief within 30 days.

Following the adoption of the shot clock provisions, the Texas cities of Arlington and San Antonio appealed the declaratory ruling to the Fifth Circuit, arguing that the FCC lacked statutory authority to impose timetables for siting application reviews. The cities also argued that the FCC violated the Administrative Procedure Act because the timetables were not promulgated through a notice-and-comment rulemaking and were arbitrary and capricious.   In response, the Fifth Circuit decided all of the issues in favor of the FCC. Deferring to the FCC’s expertise, the panel held that the FCC had the statutory authority to implement the timetables pursuant to its general authority under the Communications Act to make “such rules and regulations as may be necessary to carry out the Communication Act’s provisions.”

The panel also found that the FCC’s actions did not violate the APA. First, the panel recognized that the shot clock ruling resulted from adjudication and therefore was not subject to the APA’s formal notice-and-comment rulemaking. Second, the panel noted that the FCC had discretion in choosing whether to establish the shot clock rules through adjudication or rulemaking. In this case, the FCC’s reliance on adjudication was neither arbitrary nor capricious because the City of Arlington court determined that even if the FCC failed to comply with the APA, this failure would represent a “harmless error” which would not require reversal of the FCC’s ruling.

The Fifth Circuit’s decision represents a win for wireless service providers which hope that the shot clock rules will facilitate the nationwide build-out of advanced wireless broadband networks. However, state and local governments already strapped for resources may find it difficult in all cases to “beat the buzzer."

White House Jobs Bill Includes Spectrum Auction Plan

By Marc Martin and Marty Stern

After being abandoned during the Congressional debate over the debt ceiling, the proposal to free up broadcast spectrum through “incentive auctions” is now part of the American Jobs Act announced by President Obama on Thursday and sent to Congress yesterday. Incentive auctions allow broadcast spectrum licensees to cede portions of their spectrum for auction by the FCC in return for a portion of the auction revenue. According to the Obama Administration’s estimates, the auctions will raise approximately $28 billion, which, under the proposed legislation, would be used to fund the creation of a nationwide, interoperable wireless network dedicated to public safety – bringing front and center the long simmering D Block controversy that has stymied earlier efforts to pass incentive auction legislation.

The current incentive auction proposal borrows from legislation introduced earlier this year by Sen. Jay Rockefeller (D-WV) and Sen. Kay Bailey Hutchinson (R-TX), and approved by the Senate Commerce Committee. The Senate bill would allocate, without auction, an additional swath of 700 MHz band “D Block” spectrum for public safety use and provide $7 billion to a new quasi-governmental entity named the “Public Safety Broadband Corporation” to fund and oversee the a new public safety network. This plan conflicts with draft legislation introduced by House Republicans of the House Energy and Commerce Committee. The House bill would not allocate the additional D Block spectrum but rather would auction this additional spectrum to commercial wireless companies that would construct nationwide networks for use by the public safety community. House Republicans contend that auctioning the D Block to private industry would save taxpayers from having public safety entities construct the networks and would likely result in the networks becoming operational much more rapidly. The House Republican draft legislation would have also allowed successful spectrum auction bidders to remain exempt from certain transparency rules imposed by the FCC's 2010 Net Neutrality Order, a provision omitted from the new jobs bill.

The White House bill authorizes the FCC to hold incentive auctions for non-D Block broadcast spectrum. In addition, it directs the agency to recover a substantial portion of the value of terrestrial broadband deployment rights originally set aside for satellite services through new spectrum fees on certain non-broadcast television and public safety licensees. In addition to receiving auction revenue, broadcast licensees may also be eligible for reimbursement of the costs incurred in “repacking” their licenses from their current allocations in order to make contiguous spectrum blocks available for auction. The Commission would also be given authority to adopt rules that allow public safety entities to roam and receive priority access on commercial networks during emergencies. The FCC would be required to make regular reports to Congress on the use of public safety spectrum and provide suggestions on how to increase spectrum efficiency. 

Wireless industry organizations, such as Mobile Future, quickly praised the auction proposal, stating that the additional spectrum freed under the proposal could produce half a million new jobs. A group of computer and software developers asked the FCC to “accelerate” the reassignment of spectrum to mobile broadband use if the agency receives auction authorization from Congress. Democratic leaders also called for prompt consideration of the President’s plan to avoid the delays, party conflicts, and broadcast industry opposition which hampered consideration of earlier spectrum auction proposals.

But some telecom observers suggest that the Obama Administration may be courting criticism from former allies through the new legislation. Specifically, the proposed legislation does not contain any language preserving the use of unassigned spectrum for unlicensed use. Major Internet companies, such as Google, which previously supported the Administration’s efforts regarding auctions, hoped to use this “white space” spectrum to expand broadband network coverage. The observers further contend that the bill could undermine the goodwill the administration cultivated with television broadcasters over the past few months on establishing auctions with sufficient protections for incumbent television licensees.

Even if opponents manage to strike incentive auctions from the new jobs legislation, the bipartisan “supercommittee” created during the debt debate could separately push broadcast spectrum auctions through debt reduction legislation. Public safety advocates have already lobbied many lawmakers on the supercommittee to include funding for a public safety network in any plan it sends to Congress later this year.

D Block Auction Bill a Casualty of Debt Ceiling Deal

By Marc Martin and Marty Stern

The debt ceiling deal reached over the weekend between the White House and Congressional leaders omitted provisions authorizing incentive auctions for broadcast spectrum and funding for a “D Block” public safety network.  Senate Democrats, led by Majority Leader Harry Reid (D-NV), proposed a bill earlier in the week as part of the debt-ceiling debate authorizing the auction of broadcast spectrum for wireless broadband to help fund an interoperable public safety network.  According to the bill’s supporters, the spectrum auctions would have raised up to $15 billion in federal revenue, with participating broadcasters allowed to share in auction proceeds.

The omission of spectrum-related legislation comes as a surprise to many observers who labeled spectrum auctions a “slam dunk” in any future debt agreement.   For many years, FCC spectrum auction authority has been included in broader budget bills. But Sen. Reid’s proposal encountered strong opposition following its introduction from broadcast groups worried that the legislation provided too few protections for broadcasters from the involuntary repacking of television broadcast spectrum.  A number of Members also expressed concern that the debt ceiling debate was not the appropriate forum to consider spectrum reform.  The growing resistance, combined with the impending August 2nd debt ceiling deadline, led Sen. Reid and House Majority Leader Rep. John Boehner (R-OH) to drop the spectrum auction provision from the debt ceiling legislation.

As a result, FCC authority to auction broadcast spectrum will likely be taken up in stand-alone legislation during the coming months.  It is unlikely any stand-alone bill would have an easy path to enactment. There were already House and Senate D block auction bills at odds with each other over the extent of broadcaster protections, whether the public safety network should receive public funding or private support by commercial mobile operators, and the possible use of broadcast “White Spaces” for unlicensed “Super Wifi” devices.

Tower Technology Panel to Address Tough Issues on Getting Broadband Wireless Sites Built

The Tower Technology Summit  at CTIA Wireless 2011 will feature a panel on on Wednesday, March 23 in Orlando entitled "Zoning/Permitting: Shifting the Paradigm to Cooperation." The panel will grapple with the tough issues behind 4G and wireless broadband deployment -- the pressure of building out networks using pole attachments in rights of way and macro sites in the face of sophisticated and increasingly successful community resistance, including vocal opposition often based on fear of radio emissions.

K&L Gates partner Marty Stern will be one of the speakers on the panel and will discuss specific approaches from earlier deployment-related battles at the federal level. Marty will be focusing on strategic approaches to advocacy and coalition building, starting with the premise "If you want broadband, you gotta get it built." The panel will get to the heart of the challenge of this necessary paradigm change: moving municipalities, non-wireless industry advocates, citizens, carriers and DAS providers onto the same page.