Wireless Spectrum Auctions

Following what wireless industry called “Herculean effort” in Congress that passed legislation delaying 700 MHz auctions, FCC followed suit Wed. by postponing bidding and planning for much smaller auction this summer, as directed by Congress. After whirlwind of Senate and House votes derailed timing of lower 700 MHz auction late Tues., attention on Hill and industry turned to larger spectrum issues that new law buys extra time for policymakers to address, including proposed spectrum relocation fund, 3G viability assessment, 800 MHz reconfiguration proposals. Rep. Pickering (R-Miss.) told reporters Wed. that moving bill that would create trust fund to reimburse federal agencies that had to relocate from bands auctioned to commercial users was “achievable priority” this year. Industry sources said they also expected release shortly of viability assessment from Administration that could free up close to 90 MHz, rather than 120 MHz that industry had sought, for 3G services, with trade-off being that bands would carry assurances of being usable in relatively short term.

On eve of start of FCC auction for Ch. 52-59 spectrum, Senate late Tues. approved and House later also endorsed compromise legislation that would delay bulk of 700 MHz auctions indefinitely. Exception would be C- and D-block licenses in lower 700 MHz band, which have been scheduled with rest of lower band for today’s auction. Bill would delay auction of those licenses until at least Aug. 19 and bill would eliminate legislative deadlines for rest of lower and upper 700 MHz band. Senate approved bill by unanimous consent, clearing substantial hurdles such as threats of holds by rural senators and dwindling timeline to act before auction starts today (Wed.) for lower 700 MHz band. What 11th hour Senate passage of compromise bill means for FCC plans to hold bidding as scheduled wasn’t clear at our deadline, particularly with House passage and presidential signature still needed. Several industry sources had said that if Congress took last-min. action to derail all or part of lower 700 MHz band, Commission could delay start of bidding as late as Wed. morning, although what agency planned wasn’t clear at our deadline.

FCC filed in opposition at U.S. Appeals Court, D.C., late Mon. to emergency motion for partial stay by 2 state agencies that operate public TV stations. Central Wyo. College and Idaho State Board of Education had argued they were eligible to be exempt from auction of lower 700 MHz band because they were seeking spectrum for noncommercial educational broadcasting. Two agencies filed at D.C. Circuit last week after FCC didn’t act on June 12 request for similar action on auction that starts Wed. (CD June 17 p1). Central Wyo. and Idaho board sought partial stay that would affect only licenses in their state that they sought as part of lower 700 MHz auction. Commission argued that even partial stay of auction “would cause substantial harm” to many carriers that had qualified to participate. “The court should deny this last-minute motion to stay an important FCC auction that has been scheduled for more than three months,” agency said: “The motion was filed just 3 business days before the auction is to begin, even though the moving parties knew at least by May 8, 2002, that their plans to apply for this spectrum would be complicated by the scheduled June 19 auction date.” Commission also said 2 state agencies hadn’t shown that harm they might suffer if bidding went forward as scheduled would be irreparable. FCC said award of any licenses as result of auction would be subject to resolution of any pending petitions for review and “therefore could be undone if necessary.” Both state agencies were found not eligible to participate in auction by FCC Wireless Bureau. Bureau said licenses selected by these agencies are subject to resolution of pending issues raised by their applications, including determination of whether applicants for such licenses are noncommercial educational broadcast stations under provisions of Communications Act that stipulate competitive bidding authority doesn’t apply to such stations. FCC said in filing it decided on its own motion last week that noncommercial educational broadcasters aren’t eligible to apply for initial licenses for new services in lower 700 MHz band.

FCC decision on use of terrestrial repeaters is likely to determine fate of New ICO, Vp-External Affairs Gerry Salemme told us Fri. Past filings by company have said it couldn’t survive without Commission approval to use terrestrial spectrum for proposed satellite broadband service (CD May 31 p3). Project may be scrapped despite $3 billion investment, including $660 million from Chmn. Craig McCaw, ICO filings and McCaw have said in recent comments. McCaw has struggled with what to do with ICO after pulling it out of bankruptcy, industry sources said. Company has faced major opposition from wireless industry in effort to gain regulatory approval for revamped service, including Cingular, Sprint and AT&T. “We would be in a very difficult” position and we would have to “review our business plan,” Salemme said.

Agreement to delay spectrum auction was reached on Hill, according to draft of bill Communications Daily obtained. Spokesman for Senate Commerce Committee said amendment to delay auctions would be added as amendment to House Commerce Chmn. Tauzin (R-La.) bill that would delay auction (HR-4560). Bill says C- and D-blocks would go forward as early as Aug. 19, 2 months later than June 19 date now scheduled. Senate Commerce spokesman said Sens. Hollings (D-S.C.), Stevens (R- Alaska), Kerry (D-Mass.) and Ensign (R-Nev.) agreed to amendment. House Commerce Committee spokesman Ken Johnson said agreement was in place and Tauzin was “hopeful and optimistic” that issue could be resolved legislatively in next few days. Johnson said he couldn’t supply details of agreement. Spokeswoman for Stevens said he wanted agreement to include specific dates for FCC to hold auction, but didn’t detail what time frame was acceptable.

FCC approved notice of proposed rulemaking (NPRM) at Thurs. agenda meeting that for first time would allow commercial use of 71-76 GHz, 81-86 GHz and 92-95 GHz. Proposed rules would cover fixed point-to-point operations in that spectrum, which developers have been eyeing for rollout of gigabit-per-sec. broadband capacity with fixed wireless applications in areas where fiber capacity can’t reach easily. “The proposal we are making today will promote greater sharing between federal and non-federal users and encourage commercial deployment of technologies developed in military type environments,” said Office of Engineering & Technology Chief Ed Thomas. Potential uses of spectrum include high-speed wireless local area networks, broadband access systems and point-to-multipoint and point-to-point communications, FCC said. Spectrum now is undeveloped, although new technology developments have made commercial uses practical, officials said.

Several senators called for national spectrum management policy as panelists at Senate Commerce Committee hearing Tues. discussed needs for more spectrum by both military and commercial sector. However, panelists weren’t able to say precisely how much spectrum would be needed, nor were they able to estimate how quickly a national policy could be developed. But legislation probably would be part of spectrum management overhaul, said Senate Communications Subcommittee Chmn. Inouye (D-Hawaii) and Sen. Wyden (D-Ore.). Sen. Burns (R-Mont.) said he would be introducing spectrum management legislation after General Accounting Office (GAO) releases “comprehensive” report on issue.

AT&T Wireless, Cingular Wireless and Verizon Wireless asked FCC to suspend action on request by New ICO to provide ancillary terrestrial service in mobile satellite service (MSS) band until Commission acted on 2 other pending proceedings. Wireless carriers, in June 7 ex parte filing, reiterated their opposition to granting flexibility to New ICO to provide terrestrial services in that band, saying it would “conflict with previous orders, circumvent the law and deny significant auction revenues to the government.” Carriers asked that FCC first act on CTIA petition seeking reallocation of MSS spectrum based on arguments that service wasn’t viable and there was need for spectrum among terrestrial carriers. After Commission turned down CTIA request last year, group filed for reconsideration in Oct. Wireless carriers also sought review of decision last year by FCC’s International Bureau and Office of Engineering & Technology, which granted applications of New ICO and others for MSS licenses. Carriers challenged decision, which they said granted licenses without auction. “The illogic of the Commission’s actions will be compounded if the MSS flex proceeding is decided before the Commission has even reviewed the propriety of both the initial license grants for satellite-only service and the original satellite-only allocation,” carriers said. “It is improper for the Commission to review whether the MSS licensees should be granted even broader authority before the Commission decides whether the original allocation, eligibility rules and license proceeding were valid.” AT&T, Cingular and Verizon urged FCC to revisit “the factual premises underlying the original MSS allocation and licensing decisions at the same time it considers whether to permit terrestrial use of MSS spectrum and eligibility issues.” Action on MSS flexibility should be suspended until FCC resolves other outstanding proceedings, they argued.

NTIA Dir. Nancy Victory called Tues. for redoubling of efforts to create “workable plan” for public safety interoperability. At start of 2-day NTIA summit on technical issues related to public safety interoperability, she said: “Without interoperability, our public safety community is left with a Tower of Babel in which no one can understand what anyone else is saying or learn what others are doing.” Victory said NTIA would work “closely” with new White House Office of Management & Budget initiative, Project Safecom, on which Federal Emergency Management Agency recently took lead (CD June 10 p2). Project is focusing on issues such as federal-to-federal and federal-to-state public safety interoperability. NTIA’s spectrum research lab in Boulder has been tasked with standards development for public safety digital land mobile radio (LMR) communications systems, she said at conference co-sponsored with Public Safety Wireless Network (PSWN). Lab will conduct interoperability testing of systems “in the near future,” Victory said. As for NTIA Spectrum Summit in April, during which agency joined with industry and other parts of federal govt. in discussing potential changes in federal policy in that area, Victory said NTIA expected to have report on solutions stemming from summit discussions “in coming weeks.” Public safety needs will play “preeminent” role in that broader review of spectrum management processes, she said. In other spectrum areas, Victory reiterated that Administration had sought delay of 700 MHz auction, for which FCC recently delayed upper band bidding by 7 months while keeping June 19 date intact for lower band. “Negotiations continue on Capitol Hill regarding whether or not the auction will go forward,” Victory said. Following NTIA’s public safety interoperability summit, she said it would examine recommendations that emerged from conference in coordination with FCC and PSWN, which is program run by Depts. of Treasury and Justice. NTIA’s Public Safety Program office also will examine spectrum needs of public safety users and work with FCC to address them, she said. In separate session, Rick Murphy, PSWN program manager for Treasury Dept., said one interoperability issue that beset some local agencies was large proportion of 3 million public safety officers in U.S. who were volunteers. “They don’t get much money to buy equipment,” Murphy said, and often accepted hand-me-down gear from their professional counterparts. Those different generations of equipment make it harder to achieve interoperability in some cases as new gear comes on line, he said. Robert Lee, PSWN program manager for Justice Dept., cited several tough questions he said lay ahead for public safety operators, including funding and spectrum needs and whether incentive programs should be created to promote interoperability solutions among public safety systems. Lee said grant funding or seed money could be used in that area, including from homeland security funding proposals now moving through Congress.

Private wireless industry groups exhorted colleagues at American Mobile Telecom Assn. (AMTA) conference Mon. to move toward common position on plan to relieve public safety interference at 800 MHz. But occasionally spirited exchanges at start of 2-day conference in Arlington, Va., stressed how far apart different user groups were on how to mitigate interference as part of notice of proposed rulemaking approved by FCC in March. How to pay for incumbent relocation and where replacement spectrum would come from are among critical issues that remain as sticking points, although all sides agreed that public safety should obtain more spectrum. “Interleaving these kinds of operations -- analog high side public safety type systems on one hand and high efficiency Nextel SMR operations on the other, they simply are going to cause these intermodulation problems and there is no way to tweak your way out of it,” Nextel Vice Chmn. Morgan O'Brien said. Several participants said time was running short to reach broader agreement on solution, including 30 additional days for reply comments on FCC’s NPRM and shrinking window on Capitol Hill to move new legislation this session. “It’s time for this industry to stop fighting among itself,” said Laura Smith, pres. of Industrial Telecom Assn. (ITA). “We have to work together to come up with a solution.”