On March 16, 2010, after a 13-month study, the Federal Communications Commission released to the public and Congress “Connecting America: The National Broadband Plan,” containing its policy recommendations for achieving national goals identified by Congress in 2009 legislation, including ensuring that every American has “access to broadband capability.” Spectrum policy is key to the continued rapid growth of wireless broadband, U.S. innovation and investment and indeed to U.S. economic policy overall. The Plan outlines recommendations to make more spectrum available quickly and over a 10-year period, as well as to reform U.S. spectrum policy toward greater flexibility in order to encourage innovation and the development of new, more efficient wireless broadband uses.
GREATER TRANSPARENCY CONCERNING SPECTRUM ALLOCATION AND UTILIZATION
The Plan outlines steps that the FCC should take to ensure greater transparency concerning spectrum allocation and utilization, such as the launch of a “spectrum dashboard” that will enable users easy access to spectrum use information. The Plan also recommends a study by the FCC and the National Telecommunications and Information Administration (NTIA) to measure spectrum utilization between 225 MHz and 3.7 GHz and a triennial assessment of spectrum supply, usage and demand including potential sources of new spectrum.
INCENTIVES AND MECHANISMS FOR SPECTRUM REALLOCATION
New incentives and mechanisms to reallocate or repurpose spectrum are needed, according to the Plan. Acknowledging that the relocation of incumbent spectrum holders to other spectrum can often be difficult and protracted, the Commission recommends that Congress expand the Commission’s authority to conduct “incentive auctions” in which incumbents relinquish spectrum rights to other parties or the FCC. “Incentive auctions” would include auctions in which incumbents receive a portion of the proceeds as well as two-sided auctions between a willing seller and a willing buyer where the FCC plays the role of the auctioneer.
The Commission also recommends that Congress revise the Commercial Spectrum Enhancement Act (CSEA) to provide for Spectrum Relocation Fund payments to Federal users that vacate dedicated federal spectrum and make use of commercial networks. By expanding the definition of reimbursable costs to include a federal incumbent’s relocation costs, including planning, technology development, and staffing costs, as well as reimbursement to make use of commercial networks instead of dedicated federal spectrum, Congress would promote agency use of shared commercial infrastructure and promote reallocation of federal spectrum for licensed commercial uses.
Another mechanism proposed is the imposition of spectrum fees on spectrum licensees, including government licensees, for the purpose of creating an incentive to use spectrum more efficiently and to transfer unneeded spectrum to another user or back to the FCC. One approach, which is used by Ofcom in the United Kingdom, is to set low fees, and gradually raise them over time until the incentives begin to work. However, the Plan notes that spectrum fees must avoid disrupting public safety, national defense and other essential services.
The Plan also outlines the need for the FCC to reevaluate the secondary markets policies to promote access to unused and underutilized spectrum, especially in rural areas. The FCC should examine barriers to secondary markets activity as well as incentives to promote secondary markets.
MAKING MORE SPECTRUM AVAILABLE
Weighing the rapidly growing demand for broadband spectrum against expected increases in spectral efficiencies as a result of new technologies, the Plan concludes that an additional 500 megahertz of spectrum should be made available within the next ten (10) years, with 300 megahertz to be made available between 225 MHz and 3.7 GHz within the next five (5) years. Several recommendations are made to reallocate spectrum to new wireless broadband uses and revise service or technical rules to unlock the potential for existing allocations to be used for wireless broadband. Deployment of reallocated spectrum would largely be through auctions, but would also include spectrum dedicated to unlicensed use.
Relaxed 2.3 GHz Wireless Communications Service (WCS) Rules (20 Megahertz):
Although auctioned in 1997, WCS spectrum in the 2.3 GHz band is not ideal for 4G broadband applications largely due to restrictive rules intended to prevent interference to neighboring Satellite Digital Audio Radio Service (SDARS) provider Sirius-XM. The Plan indicates that the Commission should promote wireless broadband service in 20 megahertz in this band by relaxing the current rules, including limits on out-of-band emissions to enable existing licensees to provide higher-powered, wider-range 4G applications. The Plan also assures SDARS and aeronautical telemetry users in adjacent bands that they will be protected under any new rules. However, relaxing WCS rules in the 2.3 GHz band is likely to meet stiff opposition from Sirius-XM, which was before Commission staff as recently as March 12, 2010, lobbying against the relaxation of WCS rules.
Upper 700 MHz D Block Auction (10 Megahertz)
The Plan recommends that the 10 megahertz in the Upper 700 MHz D block be auctioned for commercial use with technical requirements that would make it compatible with the adjacent public safety spectrum. This would make it possible, but not mandatory, for there to be a spectrum sharing partnership between the D Block licensees and the adjacent public safety broadband licensee. The Plan recommends (1) a standard air interface for the D Block—most likely LTE; (2) ensuring public safety roaming and priority access rights on the D Block; (3) development of devices that can operate on both blocks; and (4) having commercially reasonable build-out requirements for the D Block with incentives to promote additional deployment for the benefit of public safety and rural areas. (see our separate report on this topic for more details)
Advanced Wireless Service Auction (60 Megahertz)
The Commission proposes a 2011 auction of up to 60 megahertz of spectrum from the Advanced Wireless Services (AWS) bands, possibly including 20 megahertz of reallocated 1.7 GHz federal spectrum to be paired with 20 MHz of AWS-3 band spectrum. The remaining 20 megahertz to be auctioned would be comprised of the two 10-megahertz AWS-2 “H” and “J” Blocks. The Commission recommends that NTIA complete its 1.7 GHz reallocation analysis by October 1, 2010, at which point the FCC should commence reallocation proceedings for the combined Block if NTIA concludes the reallocation is a “strong possibility.” If not, the Commission can adopt final rules in 2010 for a 2011 auction of the unpaired AWS-3 spectrum. The Commission also noted the potential synergies of grouping the AWS-2 “J” Block with contiguous MSS S-Band spectrum, or with the AWS-3 band in the absence of 1.7 GHz spectrum reallocation.
Accelerated Terrestrial Deployment of Mobile Satellite Spectrum (MSS) (90 Megahertz)
Roughly one third of the 300 megahertz the Commission plans to make available for broadband service over the next five years will come from expanded terrestrial use of MSS spectrum. While rules have been in place for several years that allow MSS satellite operators to supplement their space-based networks with ancillary terrestrial services, onerous regulatory requirements have hindered efforts to implement terrestrial service. This has largely stranded 90 megahertz of spectrum that is underutilized in the lower-48 states. The Plan outlines three general initiatives to “unlock” this spectrum for terrestrial use:
While specific actions are not identified in the Plan, the FCC likely to explore removing the current obligation that all handsets operating in MSS frequencies have earth-to-space transmission capability and formally eliminating the need for a satellite operator to maintain a spare satellite before it can utilize MSS frequencies for terrestrial service. The initiative to free MSS spectrum for terrestrial use is a net positive development for MSS satellite operators, who are likely to gain a significant secondary source of revenue without losing control of their spectrum.
Reallocation of TV Broadcast Spectrum (120 Megahertz)
The Plan aggressively targets TV broadcast spectrum for significant expedited reallocation for wireless broadband use due, according to the Plan, the superior propagation characteristics of the TV spectrum and current inefficient and undervalued use of the spectrum by TV broadcasters. The Plan acknowledges, without elaboration, that the proposed changes to TV spectrum will have an impact on consumers, the public interest, and the various services that currently share this spectrum including low power TV, wireless microphones, and prospective TV white space devices. Throughout the broadcast spectrum discussion in the Plan, the Commission states an intent to preserve over-the-air TV as a “healthy, viable medium” and protect longstanding policy goals such as localism, viewpoint diversity, competition and opportunities for new entrants to participate in the industry including women and members of minority groups.
Although the Plan states that only an initial analysis has been conducted and “all options must be examined,” it recommends reallocation of 120 megahertz — nearly half of the spectrum allocated to TV and the largest portion of the proposed 300 megahertz of repurposed spectrum — of TV spectrum for wireless broadband use through several specific steps, including:
1. Updating the rules to ensure the most efficient allotment of 6 megahertz channel assignments and distance separations This may allow for closer spacing between stations and/or “repacking” channel assignments more efficiently, potentially freeing up 36 megahertz, according to the Plan.
2. Establishing a licensing framework to permit two or more stations to share a 6 megahertz channel for transmissions in HD, SD or some combination thereof,
3. Developing rules for “incentive auctions” of broadcast spectrum reclaimed through “repacking” and voluntary channel sharing and/or voluntary relinquishment of some or all of a station’s bandwidth. Through this mechanism, stations could share in the proceeds of the auctions, provided Congressional authority is granted, and continue broadcasting over -the-air under new shared channel assignments and obtain reimbursement from auction winners for expenses incurred as a result of “repacking.”
To mitigate the impact on over-the-air consumers, reallocations should occur in the country’s largest, most densely populated markets where spectrum demand and congestion are greatest and consumers have many alternative means to view TV content. Voluntary market based reallocation should be implemented in a way that will have limited long-term impact on consumers overall, broadcast business models, and the public interest. Finally, the Commission should hold rulemakings to explore appropriate compensation mechanisms and levels to retain free TV service for consumers who meet established criteria. As an example, the FCC posits that consumers could become eligible for a “lifeline” video service from MVPDs consisting of over the air TV signals in their market.
4. Exploring alternatives including changes in broadcast technical architecture, an overlay license auction, or more extensive channel sharing in the event other recommendations do not yield a significant amount of spectrum.
5. The Plan also recommends several additional measures to increase efficiency of spectrum use in the broadcast TV bands:
Timing: The Commission should complete rulemakings on the above steps that are within its authority as soon as practicable and no later than 2011 with an auction of some or all of the reallocated spectrum in 2012. If Congress grants the FCC authority to conduct incentive auctions prior to the auction in 2012, then the FCC should delay any auction of reallocated TV spectrum until 2013 to provide time to complete rulemakings on voluntary incentive auctions. In any event, all reallocated spectrum “should be cleared by 2015.”
The Plan says little specific about how the TV band spectrum freed up from these efforts should be used. No recommendation is made with respect to the amount of spectrum that should be devoted to licensed or unlicensed use or where in the TV broadcast spectrum the reallocation should take place.
On the whole, broadcasters will likely vigorously oppose this proposal. The Commission states that its spectrum recommendations “might not significantly affect” other current or future occupants of the broadcast TV bands” including land mobile radio systems, wireless microphone users and TV white space devices, although the Plan suggests that any impact that does occur will be outweighed by the "substantial benefits of more widespread and robust broadband services.”
FOSTERING POINT-TO-POINT BACKHAUL SERVICES
The Plan recommends revision of Parts 74, 78 and 101 of the FCC’s rules to allow increased spectrum sharing among compatible point-to-point microwave services, including spectrum currently used for the Broadcast Auxiliary Service and the Cable TV Relay Service. This would result in additional access to spectrum suitable for backhaul in prime frequencies below 12 GHz. The Commission also recommends considering the use of underutilized “White Spaces” spectrum below 1 GHz for backhaul in very rural areas where the spectrum might otherwise be unused.
The Plan also recommends revising its Part 101 microwave rules to allow for greater flexibility and cost-effectiveness in deploying wireless backhaul in capacity-limited urban areas and range-limited rural areas. In particular, consideration of such revisions would include: 1) allowing greater spatial reuse of microwave frequencies, particularly in urban areas, 2) modification of minimum data throughput rules for microwave channels, including using adaptive modulation, particularly in rural areas where microwave backhaul is essential for broadband; 3) reduction of antenna size restrictions in order to reduce manufacture, distribution, installation and maintenance costs and maximize the cost-effectiveness of microwave services; 4) adoption of new architectures and technologies in the use of higher frequencies as such use becomes compatible and synergistic with new wireless paradigms.
EXPANDING OPPORTUNITIES FOR INNOVATIVE SPECTRUM ACCESS MODELS
The Commission and NTIA should identify “opportunistic sharing arrangements” where new services can be introduced to promote more efficient spectrum use. Specifically:
Creation of a Dedicated, Contiguous Nationwide Band for Unlicensed Use
The Plan calls for a nationwide band where unlicensed use is given a primary or co-primary allocation. While the Plan does not preclude other operations, it clearly indicates that the principal intent of the new unlicensed band will be to “serve rural and unserved communities.” Making unlicensed service a primary or co-primary user of a nationwide band is a significant departure for the Commission, which has previously authorized unlicensed use of spectrum only on a non-interference, sufferance basis overlaid on higher priority, licensed use. The Plan does not identify specific frequencies or an amount of spectrum that should be devoted to the new national unlicensed band.
Expeditiously Conclude TV White Spaces Proceeding
The White Spaces proceeding introduced new techniques for sharing spectrum between licensed incumbents and unlicensed new technology entrants that may be “extended and expanded to other spectrum.” The Plan calls for the Commission to quickly resolve pending petitions for reconsideration in order to realize the potential of TV White Spaces spectrum.
Spur Development and Deployment of Opportunistic Uses of Spectrum
The Commission's policy should promote more widespread use of “cognitive” or “opportunistic” devices that are frequency agile and capable of dynamically identifying and operating on frequencies that have been vacated. Toward this goal, the Plan identifies several specific actions.
Enhanced Research and Development
Recognizing that research and development under the current rules can be cumbersome, the Plan calls for streamlined and more flexible experimental licensing rules, including rules that permit broader market studies, that will foster use of fallow spectrum for more efficient and innovative systems. The Plan tasks the FCC and NTIA to identify underutilized spectrum suitable for conducting research activities. The Plan also calls for increased funding for experimental operations in a wireless testbed from the National Science Foundation.
Recognizing that additional spectrum for wireless broadband will be needed, the Plan declares that all non-federal and federal spectrum must be closely examined for possible reallocation in the future. The Commission recommends a process for this ongoing effort including a policy that the FCC should promote innovative approaches to spectrum allocation within the International Telecommunications Union (ITU) and in discussions with other federal agencies. The Plan also acknowledges the special needs of Tribal communities by suggesting consideration of Tribal land bidding credits, and a Tribal priority policy for fixed and mobile license potentially with geographic carve-outs, build out incentives. The Plan also recommends that the White Spaces reconsiderations be resolved to determine whether the FCC should exclude white space TV band devices in the border areas with Mexico and Canada including Tribal Lands in those areas and whether higher power fixed operations should be permitted in rural areas which often include Tribal lands.
This is one of a series of reports by Bingham’s Telecom, Media, and Technology practice group focusing on specific aspects of the FCC’s National Broadband Plan. If you would like to receive our reports on other topics, or to consult with us about how the Plan and its implementing proceedings may affect your business, please contact:
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This article was originally published by Bingham McCutchen LLP.