FCC issued memorandum opinion and order Thurs. that, among other ...

1997 Balanced Budget Act changes to Sec. 309(j) and 337 of Communications Act. Action: (1) Reiterated that public safety radio services exemption of Sec. 309(j), which authorized FCC to award spectrum licenses through auction, applied to services and not specific users. FCC affirmed dominant use test previously laid out by Commission as way to ascertain whether particular service qualified for public safety exemption. (2) Retained mandatory 5-year holding period for modification of 800 MHz private land mobile radio service authorization to permit commercial use. (3) Affirmed earlier FCC decision that applicant must demonstrate there was no public safety spectrum available to “satisfy the public safety service use before it can be granted a waiver” under Sec. 337. On band managers, which FCC adopted for 700 MHz guard bands, Commission rejected arguments by several utilities that allowing band managers in utility bands such as 900 MHz appeared to be way to circumvent auction exemption for public safety radio services. “In essence, these entities equate band manager licensing with the use of competitive bidding, which they oppose in the private services,” Commission said, noting it had rejected such arguments in past. Objections of utilities are “premature” because FCC has said it would examine eligibility restrictions in future on service- specific rulemakings, agency said. FCC previously examined scope of public safety radio services exemption and how it would handle cases in which mutually exclusive applications were filed for public safety services. At that time, it concluded exemption applied to specific services, not users. Nearly dozen petitioners argued exemption should apply to specific users and that all private radio spectrum users who met terms of statutory exemption were “auction-exempt.” Energy companies Cinergy and Entergy, for example, argued that FCC lacked authority to conclude that spectrum allocated for use by utilities was subject to competitive bidding. Commission disagreed, noting that Congress specifically referred to “services” in statute. In other areas, United Telecom Council asked FCC to clarify certain spectrum issues for private wireless services, such as whether there would be future allocations for public safety and whether utilities, pipelines, metro transit systems and railroads would have access to existing public safety allocations. FCC said it could create separate designation for public safety services under Part 90, either by allocation or service rules, but it declined to speculate on amount of spectrum that would be available, saying it would be decided in specific proceedings.