Top Ten Spectrum Issues for Utilities

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Wesley K. WrightAttorney

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+1 [email protected]

Top Ten Spectrum Issues for UtilitiesOctober 3, 2012

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Top Ten Spectrum Issues for Utilities


TEN


Number 10: 700 MHz Band

Middle Class Tax Relief and Job Creation Act of 2012 (passed Feb. 2012)• Established First Responder Network

Authority (“FirstNet”)• Allocated 10 MHz of Spectrum to FirstNet

– Public Safety Spectrum (763-768 MHz / 793-798 MHz)

– D Block (758-763 MHz / 788-793 MHz)• Provided $7 billion to assist Public Safety

Network Buildout



FirstNet governed by 15-person Board of Directors• Secretary of Homeland Security, Attorney

General and Director of Office of Management and Budget

• 12 remaining appointees named in August– Samuel Ginn, Chairman– Tim Bryan, CEO of National Rural

Telecommunications Cooperative• NRTC members include rural power cooperatives and

telecommunications operators.



Next Steps:• FirstNet issues Request for Proposals

• Timetable for construction (factoring in rural buildout), coverage areas, service levels and performance criteria

• Provide Governor of each State– Planned buildout natiowide and in the State– Funding level for the State

• Within 90 days, State can– Participate in the Plan and accept funding, or– Opt out and conduct its own FCC-approved

deployment



Utilities Wishing to Access 700 MHz Spectrum on shared basis with Public Safety• Network planning, deployment and operation

largely handled on local/State level • Reach out to point(s) of contact within State


Nine


Number 9: Microwave Audit

The Act required FCC and GAO to determine whether 11 GHz, 18 GHz and 23 GHz bands are being used efficiently• Determine number of applications submitted

by common carriers for frequency assignments that were not successfully coordinated and filed with FCC

• Used by critical infrastructure entities for point-to-point microwave systems


Number 9: Microwave Audit

FCC Public Notice June 20• Comments:

– AT&T and Sprint: No problems; never required to modify an initial request for a link due to spectrum unavailability

– Comsearch: Rejection rate is very small. They are able to accommodate most applicants (private and common carrier) and the bands are efficiently used.

GAO expected to issue report assessing whether Gov’t receives maximum revenue


Eight


Number 8: T-Band Licensing Freeze

The Act calls for the public safety T-Band spectrum (470-512 MHz) to be reclaimed and auctioned by the FCC in the next nine years• Licensed to Public Safety and Critical

Infrastructure entities in major metro areas April 2012

• T-Band Licensing Freeze



Affected Applications are those that would Increase the degree to which the band is currently licensed

– Applications for new licenses– Applications seeking to add or change frequencies– Applications expand existing footprint

Not Impacted– Renewal applications– Deleting frequencies– Changing number of mobile units



If T-Band licensee seeks to modify existing system, seek waiver• Extremely high bar to preserve spectral

landscape knowing auction on horizon


Seven


Number 7: T-Band Narrowbanding

T-Band licensees not required to narrowband• FCC has not determined how or when

licenses will be reclaimed and auctioned


Six


Number 6: Narrowbanding

Affected Licensees• Public Safety and Industrial/Business

licensees in the 150-174 MHz (VHF) and 421-470 MHz (UHF) bands

By January 1, 2013• Voice Systems: migrate from 25 kHz

(wideband) channel to 12.5 kHz (narrowband) channel bandwidth

• Data Systems: employ technology achieving 4800 bps per 6.25 kHz used



Data Equivalency Standard: 4800 bps per 6.25 kHz used• Ex. Emission Designator 16k (16 kHz-wide

channel).– Standard applies to channel used– Equipment must be capable of transmitting

approximately 12,300 bps (12.3 kbps)



FCC Will Not Extend Narrowbanding Deadline• 1995: original rules adopted• 1997: narrowbanding equipment available• 2004: January 2013 deadline announced

No Filing Fees or Frequency Coordination required for wideband to narrowband modifications



Importance of Narrowbanding• Interference

– After January 1, 2013, non-compliant wideband systems will not be protected

– May interfere with narrowbanded systems• Reliability

– Coordinators might ignore noncompliant systems in first quarter of 2013

• FCC Enforcement– Potentially thousands of dollars per day



FCC Requested Waivers be filed by Dec. 2011, will be strictly reviewed

If necessary, waiver should address:– Steps taken to plan for, initiate and complete narrowbanding– System Size– Whether system equipment is narrowband capable– Funding sources– Whether schedule is impacted by other systems b/c interoperability– Plans to minimize impact to co- and adjacent-channel licensees– If licensee plans to migrate to non-VHF/UHF spectrum (ex. 800

MHz), will it relinquish VHF/UHF spectrum– Proposed timetable for completion



The narrowbanding rules provide for the eventual migration from 12.5 kHz to 6.25 kHz bandwidth• FCC has not set deadline for 6.25 kHz

transition• No deadline is expected for several years


Five


Number 5: 4.9 GHz Rulemaking

June 2012: Report and Order and NPRM• To determine if critical infrastructure entities

should hold primary licenses in 4.9 GHz band– Band currently allocated to public safety licensees– Critical infrastructure entities may access under

sharing arrangements for operations in support of public safety

• FCC proposes to remove these restrictions



Complement 700 MHz Sharing• FCC asks whether fixed, backhaul and mobile

uses in the 4.9 GHz band could complement 700 MHz public safety broadband spectrum

Authorizing Operations• FCC sought comment on a number of

options, including coordination, database registration and regional planning



Comments• Primary Access: Several groups filed in

support of primary access to 4.9 GHz band for CII entities

• 700 MHz Sharing: Promoted FirstNet access to 4.9 GHz band to deploy 700 MHz public safety broadband network

• Authorizing: Urged fixed links and database registration or frequency coordination


Four


Number 4: Migratory Birds

2/19/08 - D.C. Circuit Court requires FCC to:• Address Bird Conservancy request for EIS on towers• Provide notice of pending tower applications (not just

approvals) 4/14/09 - Bird Conservancy files Petition for RM

• Require additional environmental protections 4/30/09 - FCC requests comment (May 29) and

replies (June 15)



March 25, 2011 - FCC PN seeks comment on draft rules and interim procedures • Local notice prior to obtaining an ASR• FCC publish notice of ASR requests on

website for 30 days and receive comment• EAs required for each proposed tower more

than 450 ft for affect on migratory birds (on interim basis)



March 2012 –Programmatic Environmental Assessment

Evaluated three options• No change to ASR program• Change to FAA lighting scheme

– Steady-burning red lights bad• Require EAs for towers

– All new towers and most mods– All towers near eagle nests or certain bird habitats– All towers over 450 feet



5 million bird deaths from towers annually But only .2 percent of bird deaths from

towers Found “No Significant Impact” at national

level under all three options But some significant local impacts may not

be mitigated by first two options and option 3c

Rulemaking Proceeding Expected



Interim Rules Effective June 18 New Procedure:

• Towers taller than 450 feet– Environmental Assessment Required

• Towers Requiring ASR, under 450 feet– Secure FAA Determination of No Hazard and

Marking/Lighting Recommendation– Publish Notice in Local Newspaper– National Notice via FCC website for 30 days– After 40 days, receive ASR Number


Three


Number 3: Signal Boosters

April 2011 NPRM proposed rules to allow use of fixed and mobile signal boosters for use in conjunction with commercial cellular systems.• Proposed allowing customers and building

operators to install and operate boosters to extend wireless coverage.


Number 3: Signal Boosters

Verizon and T-Mobile• Permit boosters if

– Designed and certified to meet one of two technical safe harbors

– Registered with the carrier prior to operation AT&T proposal

• Permit boosters that are licensed and approved by carriers prior to operation

– Similar to blanket licensing for mobile handsets


Two


Number 2: TV White Spaces

Channels 2-51 (except 3, 4, 37)• Space between authorized TV stations• Part 15 Unlicensed

Geolocation/database access September 23, 2010 Order

• Removes sensing requirement



November 2010 – Database managers selected:• Comsearch, Frequency Finder Inc., Google

Inc., KB Enterprises LLC and LS Telcom, Key Bridge Global LLC, Neustar Inc., Spectrum Bridge Inc., Telcordia Technologies, and WSdb LLC

Microsoft added 2011



December 2011 – FCC begins to certify database administrators • Spectrum Bridge, Telcordia certified• Limited Operations authorized

– Wilmington, NC Apr 5, 2012 – FCC releases Order raising

fixed station HAAT to 250 meters • Made minor changes to emission mask



Impacted by Incentive Auctions/Repacking • Incentive Auctions would permit broadcasters

to turn in portions of spectrum and share in proceeds of auction

FCC considering incentive auction rules• Interest Groups advocating for the

preservation of white spaces


One


Number 1: FCC Enforcement

Operation of an Expired License Corporate Mergers and Acquisitions



Licensees must file renewal applications prior to the expiration of the FCC radio license.

The Wireless Bureau may refer any late filings to the Enforcement Bureau for investigation and potential penalties.



A utility in Minnesota held four FCC radio licenses and operated for 26 months after they expired.

Result: The Bureau issued a $20,800 Notice of Apparent Liability. Utility eventually paid $16,000 to settle the case.



• The Enforcement Bureau recently expressed increased concern regarding mergers and acquisitions of entities holding FCC authorizations.

• Section 310(d) of the Communications Act prohibits an FCC station license from being assigned or transferred as part of a corporate merger or acquisition without the prior consent of the FCC.



• Licensee held 168 Multiple Address Service and two Microwave Industrial/Business Pool licenses.

• Licensee’s assets were acquired by a third party.

• The acquisition resulted in a transfer of control of licensee for which the licensee did not secure the FCC’s prior consent.



The licensee entered into a consent decree with the Commission, agreeing to “voluntarily contribute” $35,000 to the U.S. Treasury and follow a compliance plan for apparent violations of Section 310(d) of the Communications Act

www.khlaw.comWashington, DC ● Brussels ● San Francisco ● Shanghai

Wesley K WrightAttorney

Keller and Heckman LLP1001 G Street NW

Suite 500 WestWashington, DC 20001

+1 [email protected]

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Top Ten Spectrum Issues for Utilities