ABERNATHY ECHOES CONCERNS OVER STATUTORY LIMITS ON AUCTION DATE

Abernathy, following speech at conference sponsored by FCBA and Computer Law Assn., said Paxson Communications had voiced “real concerns about the auctions,” raising possibility of litigation if auction were delayed without legislative change. FCC faced statutory deadline of Sept. 30, 2000, for depositing proceeds from Ch. 60-69 auction in U.S. Treasury and has Sept. 30, 2002, deadline for Ch. 52-59 band. House Commerce Committee leaders indicated last week they were preparing to introduce bill early this week that would postpone auction indefinitely (CD April 19 p2). In keynote at FCBA conference, Abernathy said: “My general rule of thumb is to follow the statute set by Congress.” She acknowledged FCC had heard concerns from Congress about timing of auction. In separate speech at Land Mobile Communications Council (LMCC) Fri., Abernathy said FCC had “acted responsibly” to encourage band clearing at 700 MHz that would give public safety users access to 24 MHz allocation. “Today, the Commission has a statutory mandate to move forward with the 700 MHz auction and that is a deadline that may well be challenged in court if we fail to hold the auction this year,” she said. “Absent legislative intervention,” she said, Commission should move forward with auction and allow “the market-based band clearing of the spectrum for public safety use to proceed.”

Commerce Secy. Donald Evans urged Powell last week to postpone June 19 auction, cautioning that hewing to deadline would be “premature,” although statutory change still was “preferable.” In testifying before House subcommittee on FCC’s FY 2003 budget, Powell had voiced concern about how Commission could defend violation of statutory deadline in court if Commission were sued for delaying auction without legislation (CD April 18 p1).

FCC Wireless Bureau earlier this month had turned down CTIA request to postpone auction. Group is expected to file petition for reconsideration of that decision as early as this week.

On other land mobile communication issues, Abernathy told LMCC: (1) FCC should “move promptly” to adopt service rules for 4.9 GHz band. In Feb., Commission adopted order to allocate 50 MHz of spectrum in that band to support public safety operations such as high-speed digital technologies and local area networks for emergency response. (2) She was “quite skeptical” of any proposal to mitigate interference to public safety users at 800 MHz that would impose significant costs on particular group of licensees. In March, Commission approved notice of proposed rulemaking examining ways to remedy interference problems for public safety at 800 MHz, including plan floated by Nextel that would reconfigure users at 700, 800, 900 MHz and 2.1 GHz bands. “I am also generally reluctant to solve the 800 MHz interference problems by moving parties into a host of other bands that further disrupt licensees’ plans -- so, if possible, I would like to find as many answers as possible to 800 MHz in the 800 MHz band,” she said.

(3) Importance of service rules on 27 MHz of spectrum’s being transferred to nongovt. services from govt. FCC issued NPRM on those rules in Feb., including potential that 6 MHz might be set aside for land mobile communications. “We can have 20 national CMRS carriers, but there will always be a solid public policy reason for private land mobile spectrum,” Abernathy said, provoking applause. (4) Need for “sufficient, reliable” spectrum for public safety licensees, including bands for interoperability. Proposals for priority access service on commercial systems are important, but aren’t substitute for “adequate, dedicated public safety spectrum,” she said.

At FCBA conference, Abernathy also raised possibility that FCC might need to revisit its priority access service rules in light of Sept. 11. FCC recently granted VoiceStream temporary waiver of its PAS rules, which will allow carrier initially to provide PAS service in N.Y. and Washington for certain national security and emergency personnel. FCC rules don’t mandate that carriers provide that service but set out operating protocols for those that do offer it. Fresh look at those rules may be warranted “to ensure those old rules are adaptable to our current reality,” Abernathy said. “These are difficult issues -- how does priority access interact with E911? And other spectrum management issues?”

On 27 MHz NPRM, which covers blocks of spectrum scattered between 216 MHz and 2390 MHz, D'wana Terry, chief of FCC Wireless Bureau’s Public Safety & Private Wireless Div., told LMCC that this was “fast-track” rulemaking. “We are looking to bring that rulemaking home very quickly,” she said, with final report and order expected “no later than early summer.” On spectrum audit for coordinated private land mobile stations and public safety licensees below 512 MHz, Mary Shultz, chief of Licensing & Technical Analysis Branch, said Commission sent out 2nd wave of audit letters last week. Audit is designed to ascertain which licenses still are being used and which are lying fallow and can be pulled back by Commission. Response rate to first round of letters, which FCC began to mail last Aug., has been 83% by public safety licensees and 70% by business licensees, Shultz said. First mailing covered 420,000 call signs, of which FCC has been able to recall 27,000, Shultz said. On April 15, agency sent 10,000 letters to licensees as part of 2nd phase of audit and plans to send out total of 59,000, she said.