ABERNATHY: KEY TO ATC REQUEST FOR MSS IS TECHNICAL FEASIBILITY

Paul Kolodzy, chmn. of FCC’s Spectrum Policy Task Force, said wideband and ultrawideband devices “create challenges” at interfaces on how govt. authority for spectrum is drawn. NTIA regulates 22% of spectrum between 322 MHz and 3.1 GHz, with FCC regulating 35% and both agencies sharing authority for 42%. Kolodzy, senior spectrum policy adviser on FCC’s Office of Engineering & Technology, cited ultra-wideband devices as example of technology that crossed both govt. and nongovt. spectrum. “Some of these issues have come to fruition since the debate associated with ultra-wideband,” he said. Among policy areas under examination by his Spectrum Policy Task Force are evaluating how FCC could be facilitator rather than inhibitor of new technology and ensuring Commission was working well with NTIA. Among changing dynamics that task force is eyeing is increase in density of transmitters, with users increasingly expected to own multiple devices built on Bluetooth and 802.11. That creates scenario in which transmitters are mobile, so their interaction ranges are harder to predict, and more numerous, he said. Kolodzy said: “Interference ranges in the future are not going to be predetermined. So the question now is how are you going to look at what is harmful interference and what isn’t.” Asked by audience member whether he advocated receiver standards to mitigate interference, Kolodzy said: “I'm not going to be an advocate of anything just yet. What I'm saying is I'm looking at that as one possibility.” It’s too early to ascertain whether that issue would be part of recommendations that task force ultimately passed on to FCC, he said. Task force also is seeking industry feedback on whether spectrum is oversubscribed or overused, he said.

Public notice will be out “shortly” outlining who is on task force, Kolodzy said. Either in same public notice, or in separate one issued at around same time, questions that task force is examining will be laid out and comment from industry solicited, he said. Task force will hold public workshops on those topics in summer, he said. Task force plans to have report to Commission in fall that may contain first recommendations, he said.

CTIA Vp-Regulatory Policy Diane Cornell said group would like FCC to examine spectrum flexibility requests in way “to look first at whether the band itself has not been allocated or assigned in a way that makes it most useful.” Flexibility policy decisions for spectrum overlays or separable bands should give rise to question of whether that spectrum should be auctioned, she said. In broader area of spectrum management reform, which has gained increased interest on Capitol Hill in last year, Cornell said CTIA would like to see: (1) Political level decisionmaking body, to augment technical cooperation that already exists between FCC and NTIA. Interagency advisory group chaired by White House would address that lack of political-level decisionmaker, she said.

(2) Long-term spectrum planning process focused in part on whether some spectrum could be reallocated for other uses. One model could be Defense Dept.’s Base Realignment and Closure (BRAC) Commission that in 1990s was charged with making independent decisions about which military bases would be shuttered. “If you had a BRAC-like mechanism to look at spectrum allocations to determine whether there are some spectrum allocations that might need to be rethought, you could identify that and have that taken over by the appropriate agencies,” Cornell said. “That could move the ball forward.” (3) Entity outside of FCC and NTIA to provide input on difficult technical and interference. (4) Improvement of U.S. involvement in international spectrum decisions. (5) Reform of satellite licensing process.

Among changes that fixed wireless operators are considering seeking from Commission is audit of satellite earth stations, said Fletcher, Heald & Hildreth attorney Mitchell Lazarus, co-chmn. of Fixed Wireless Communications Coalition (FWCC). FCC has made routine practice of licensing every satellite earth station for entire band in which that station would operate, Lazarus said. “Even if an earth station is using a small fraction of that band, it’s licensed for the entire band, and when it coordinates its operations with a frequency coordinator, it coordinates the entire band,” he said. “Similarly, even though an earth station may be operating only one or 2 satellites, it coordinates its operation through the entire geostationary arc.” In some cases, fixed wireless operator could find its application to install link in band blocked by earth station that had precoordinated on particular frequency, Lazarus said. In some cases, fixed wireless operators have found that earth station is in FCC database but either never was built or was constructed and then abandoned, Lazarus said. “We are considering going to the FCC and asking for an audit of earth stations,” he said. Concept would be similar to audit that Commission has undertaken to update its database for private land mobile radio licensees, he said. “At least the earth stations that aren’t there can be taken out of the database and free up some space for us.” In other areas, FWCC is considering asking Commission that when technology developer requests FCC permission to use spectrum in new way that applicant be required to conduct spectrum impact study, he said. Point would be to have applicant consider repercussions for other spectrum users and how they might be displaced, Lazarus said.

On secondary market policy for spectrum, on which FCC issued notice of proposed rulemaking in Nov. 2000, Abernathy said 2-track approach was warranted. She said FCC must ensure that secondary market transactions that amounted to transfer of control were dealt with quickly when they didn’t raise competitive concerns. To that end, Abernathy said FCC should develop safe harbors that would give certainty to marketplace about types of routine transfers that could be addressed quickly. She said FCC also needed to spell out when spectrum lease did amount to transfer of control. “If a leasing arrangement does not trigger a transfer of control, then there is no need for government intervention as long as the licensee remains in charge of the spectrum,” she said. Key issue there is how FCC decides to come up with different test for transfer of control other than complex Intermountain Microwave case, which is current standard, Abernathy said. That is 40-year-old case law for interpreting Sec. 310(d) of Communications Act for evaluating ownership transfers. Case has been interpreted to mean that licensee needs to maintain close hands-on control of licensed property, including daily supervision of employees. Abernathy said there was need to move away from evaluation of physical assets of applicant to what FCC actually regulated, which is spectrum. “There is no doubt that these questions are very difficult,” she said. “Whatever we do with Intermountain Microwave, it will end up in the courts and we need to have very sound legal reasoning associated with the ultimate test that we come up with.”