FCC URGED TO GRANT SPECTRUM FLEXIBILITY, WHILE DEFINING RIGHTS

Several wireless companies made distinction between prospective and retroactive grants of flexibility. Cingular Wireless said degree of service flexibility must be defined when spectrum is auctioned because it allows bidders to evaluate licenses fairly upfront. “Retroactive grants of service flexibility will not ensure that spectrum licenses will go to those who have the highest and best use for the licenses actually auctioned,” Cingular said. “Rather, such grants may cause the licenses to go to those who believe they can obtain flexibility changes after the auction that will increase the licenses’ value.” Carrier warned that granting flexibility after spectrum had been licensed could “Balkanize” certain bands by giving incumbents opportunity to seek “alternative uses in the short run, thereby using the spectrum inefficiently, and making it more difficult for the spectrum to be reconstituted into adequate and commercially reasonable amounts.” Cingular raised concerns about difficulties in giving multiple spectrum users shared access to same bands. That requires FCC, not “market forces,” to rank uses and users of spectrum, it said. “Auctions of exclusive allocations are preferable to shared spectrum access, in general,” Cingular said. “Exclusive allocations facilitate interference prevention and avoid the need to engage in complex proceedings to analyze and define harmful interference between diverse services sharing frequencies.”

Noting billions it has invested in various types of wireless licenses, Sprint said market-based approach to spectrum management wouldn’t grow until FCC clarified spectrum usage rights. It said they should include: (1) Right to exclusivity, which would “continue to encourage businesses to invest in technologies to use the spectrum most intensively.” (2) Right to renewal expectancy.

While commenters differed on extent to which FCC should update its definition of harmful interference, Sprint stressed it was adopted 40 years ago and needed revamping. “The enormous technological changes that have occurred over the past half-century and the sheer number of radio devices in the market today are reasons alone to update the definition of harmful interference,” company said. “A definition adopted in the days when spectrum management policies were based on government command-and-control is not conducive to a market-oriented environment.” Sprint said current definition, which spells out harmful interference as endangering functioning of certain devices or seriously degrading or interrupting service, was open to broad interpretation. For example, it said, it wasn’t clear what counted as “serious” degradation. Definition is obsolete because it doesn’t fully account for degradation that could be caused by cumulative impact of services overlaid on incumbent operation. It also doesn’t take into account adaptive capabilities used by modern communications systems that can adjust parameters such as transmission power and data rate to compensate for condition of particular channel of communication, Sprint said. Not all commenters agreed on need for change. Nortel warned FCC to exercise “great caution” in making any changes, saying current ITU and FCC definitions of interference and harmful interference were “adequate.”

Ericsson didn’t advocate particular changes in “harmful interference” definition, but said FCC might want to consider less regulated process for mitigating interference. “If the Commission were to allow the market to function more freely to address and remedy interference issues between spectrum users, less regulatory intervention in markets, generally, would be necessary,” Ericsson said. Qualcomm said that as FCC provided for greater uses of unlicensed spectrum, agency should “place the burden squarely on unlicensed users not to cause harmful interference to licensed services.” Commission needs to reaffirm that burden “can only be met with real world, collaborative test data supplied by the developers of unlicensed technologies.” Echoing similar arguments raised during ultra-wideband proceeding, Qualcomm recommended agency require “clear and convincing” data to make sure that unlicensed use wouldn’t interfere with safety-of-life services such as Enhanced 911. “The Commission should not permit the developers of unlicensed uses, in effect, to shoot first and ask questions later,” Qualcomm said.

Ericsson cautioned against “midstream changes in licensing requirements.” Companies must be able to build business plans for future and current use of licensed spectrum, it said. “A distinction should be made between changes in rules for already licensed spectrum and rules created for ‘new’ spectrum to be allocated, by taking current commercial uses into consideration,” Ericsson said. It urged FCC to reverse any new spectrum allocation for unlicensed use to communications services and devices “as this constitutes the highest value use of such spectrum.” In public safety, Ericsson said existing commercial wireless systems already could meet requirements of advanced national and international disaster relief capabilities for public safety. Introduction of “enhanced public safety services on a commercial basis is a superior alternative to the development of a separate or new system for emergency communications,” it said. In bands allocated for public safety use that aren’t fully utilized, Ericsson said FCC could offer financial incentives for spectrum sharing with commercial users or for clearing underutilized spectrum.

Need for more resources to be poured into R&D and experimental licensing emerged repeatedly in comments. Nortel backed “more relaxed policy” toward experimental licensing or developmental authorization for product experimentation, verification, testing. “These authorizations would enable development of equipment for overseas sales, where the regulations may not correspond with those in the U.S.,” it said. “With the divergence of U.S. frequency usage in some bands from frequency usage in other parts of the world, manufacturers may be unable to perform the necessary live-air experimentation required to develop or improve products for markets outside of the U.S.”

Motorola noted challenge presented by separate processes that NTIA and FCC have undertaken on spectrum reform. “While both the Commission and the NTIA recognize the need to reform spectrum management policies, rather than initiate a joint effort to provide a comprehensive spectrum management vision for the country, both have undertaken separate initiatives,” Motorola said. “Continuing down the road of separate and distinct spectrum management principles and policies for federal and civilian spectrum will limit the usefulness of reform efforts and sets the stage for continued lack of a cohesive process for planning and implementing meaningful change in spectrum policies for all services.” FCC and NTIA should combine their spectrum management reform efforts and create solutions for comprehensive spectrum management plan that addressed both civilian and federal users, Motorola said. “A combined approach is especially important at a time when spectrum management issues, such as ultra-wideband and attempts to find spectrum for third generation mobile services, increasingly bridge jurisdictional authority,” it said.

Motorola said that to satisfy increasing demand for spectrum for unlicensed devices, FCC should respond to petition by Wireless Ethernet Compatibility Assn. for additional unlicensed spectrum at 5 GHz. “For longer term development of consumer unlicensed devices the Commission should consider new spectrum allocations above 10 GHz where the greater propagation loss is compatible with the limited coverage area of a typical WLAN,” Motorola said. “Finally, to complete the future spectrum landscape, the Commission should, to the greatest extent possible, allocate fixed access systems to frequencies above 6-10 GHz.”

Satellite Industry Assn. (SIA) highlighted extent to which ITU allocates spectrum “to services far in advance of the use of these bands by operators.” As examples, SIA cited ITU allocations between 100 and 275 GHz and unallocated spectrum from 275-1000 GHz. There are no commercial plans to use these bands in near future. “The firm allocation of spectrum, if done prematurely and not on the basis of technical study and the evaluation of current and prospective requirements, absolutely impacts the future ability of some services to use that spectrum, as well as the efficiency of the use to which services allocated in the bands put the spectrum,” group said.

Group that included New America Foundation, Consumer Federation of America and Consumers Union urged FCC to manage wireless spectrum “as a public asset.” Joint filing recommended that FCC request that Congress earmark auction revenues for new public investments, along lines of legislation by Rep. Markey (D-Mass.) and Sens. Dodd (D-Conn.) and Jeffords (I-Vt.). Groups warned FCC against falling “into the trap of enshrining current uses and incumbents through ‘propertizing’ the spectrum.” Filing also was made by Assn. of Independent Video & Filmmakers, National Alliance for Media Arts & Culture, United Church of Christ and Media Access Project. Communications Act specifically bars any property interest in license, filing said. “Even if the Act did not prohibit conferring a property interest in a license, granting a licensee a perpetual monopoly on the right to transmit at a specific frequency, subject only to the conscience and innovation of the licensee, is bad policy,” filing said. “Such a policy will stifle innovation and free expression, diminishing value inherent in the spectrum while permitting incumbents to suppress any technology that threatens to disrupt their established business models. The Commission should not sell the future to those who can muster the billions of dollars to win a spectrum auction today.”