FCC GIVES MOBILE SATELLITES MORE FLEXIBILITY ON ATC

In general, FCC appeared to attempt to strike compromise between mobile wireless operators who fought against any ATC authority and MSS licensees who sought more latitude for offering terrestrial services.

Use of ATC by MSS providers is subject to FCC authorization, Commission said, and providers will be required to show compliance with following gating factors: (1) Launch and operation of their own satellite facilities. (2) Provision of substantial satellite service to public. (3) Demonstration of compliance with geographic and temporal satellite coverage requirements. (4) Demonstration that satellite system’s ATC will operate only within licensee’s “core” MSS spectrum. (5) Limit ATC operations only to satellite system’s authorized footprint. (6) Requirement that satellite licensees provide integrated MSS and ATC service. (7) No offers of terrestrial-only services. (8) Obtain handset certification for MSS ATC devices under equipment authorization process in Part 2 of Commission’s rules.

Additional gating factor for MSS providers is that application must be filed with Commission before forging ahead with terrestrial services to be sure ATC is truly ancillary. In separate statements, Comrs. Adelstein and Copps both expressed concerns that gating factors be applied stringently to ensure that satellite services were key to business and not ATC. “Our decision should not allow a Mobile Satellite Services system with an ancillary terrestrial component to evolve into an terrestrial system with an ancillary mobile satellite component,” Adelstein said. Copps said “vitality” of satellite services must be protected to “win ATC rights.”

Two additional orders released by FCC International Bureau Thurs. revoke 2 GHz spectrum from Globalstar, Mobile Communications, Constellation Communications. That spectrum, in addition to reserved spectrum, make up to 30 MHz spectrum available for reallocation, official close to issue said.

International Bureau orders on Globalstar, Mobile Communications and Constellation Communications dealt with missed milestone deadlines. Globalstar received authorization from IB in 2001 to operate in 1990-2025 and 2165-2200 MHz bands with “explicit deadlines” beginning July 2002 to acquire “noncontingent satellite manufacturing contract.” Globalstar requested extension of milestone deadlines and provided reasons related to “business decisions,” all of which Commission dismissed as not outside licensee control. IB declared 2 GHz MSS licenses of satellite companies null and void. Both companies had licenses in same band and also missed milestone deadlines, and licenses were also denied.

On allocation of spectrum for advanced wireless (3G) services, FCC issued: (1) Order that allocated fixed and mobile wireless services at 1990-2000 MHz, 2020-2025 MHz and 2165-2180 MHz. FCC concluded 2 GHz MSS, now authorized to operate at 1990-2025 MHz and 2165-2200 MHz, “can operate in less than the 70 megahertz of spectrum it had previously been allocated.” That keeps 40 MHz for MSS operations at 2000- 2020 MHz and 2180-2200 MHz, agency said. (MSS licensees also are operating in bands under 3 GHz).

(2) Rulemaking on use of 1910-1920 MHz, which now is available for unlicensed PCS operations but is unused. Proposal raises several possible combinations of uses involving unlicensed PCS band, 1990-2000 MHz, 2155-2160/62 used by Mobile Distribution Service (MDS) licensees and 2160- 2165 MHz earmarked for emerging technologies. While several pieces of that spectrum are lined up as part of proposals for 800 MHz reconfiguration and 3G relocation, FCC wouldn’t take any action that would sway outcome of those other pending proceedings, several sources said. (3) Order that turned down CTIA petition for reconsideration seeking reallocation of entire 2 GHz MSS band for terrestrial wireless use.

Reallocation order freed 30 MHz of spectrum for fixed and mobile services use through 21 MHz that MSS operators who missed their milestones would relinquish. Rest is drawn from taking 9 MHz of 14 MHz of MSS reserve spectrum, several sources said. In separate statement, FCC Chmn. Powell said orders represented “optimal outcome under the constraints of the existing licensing regime.” He said they also pointed to areas of FCC’s existing spectrum policy regime “that warrant particular attention, from the Commission and Congress, if we are to maximize the public interest in spectrum policy.” Powell said dissent argued that FCC should have sought more comment on its authority to assess fee on satellite licensees that would be granted additional rights under these actions. FCC already had sought feedback in that area, he said. But he said he agreed with Spectrum Policy Task Force recommendation that “Congress consider granting the Commission fee authority. Authorizing such fees would provide the Commission with an important tool for ensuring efficient use of the public spectrum resource.”

On overall spectrum policy, he said it would be better in future if FCC didn’t have to make “such command-and- control determinations.” If Congress were to repeal Orbit Act, possibility also raised by task force, FCC could adopt flexible allocation that included satellite and terrestrial use, he said. If mutually exclusive applications were accepted for filing, action would be that market, rather than FCC, could decide highest and best use of spectrum, Powell wrote. “I believe such an outcome would maximize the public interest and, accordingly, ask Congress to consider allowing the FCC the option of distributing all satellite spectrum rights via auction,” he said.

MSS Players Positive

MSS players responded positively, although many cited lack of actual order as hindrance to more detailed reactions. MSV CEO Gary Parsons said FCC decision “demonstrated leadership and vision,” adding: “This decision gives MSV its long-sought-for opportunity to provide high-speed digital wireless services anywhere in North America.” MSV Vp Lon Levin said big picture was “terrific news. We're confident that the FCC understood all of our technical points. Although we don’t know the details, the FCC wants us to succeed.” As for gating factors, Levin said they wouldn’t impede MSV’s business.

ICO Senior Vp Gerry Salemme said company applauded ATC decision: “We think that it’s a creative approach that will help ensure consumer and rural Americans will have better access to broadband wireless service.” Legg Mason analyst Rebecca Arbogast said decision was “clearly a shot in the arm for New ICO, Globalstar and MSV.”

While CTIA pledged to seek review of ATC order, others questioned how much MSS operators actually gained. “They got a nothing-burger,” industry lobbyist said, because gating criteria were so stringent that terrestrial operation would be challenge to deploy.

CTIA expressed disappointment that Commission allowed MSS operators to provide ATC service, saying it “will likely file for reconsideration at the FCC and noted that other legal challenges could be raised as well.” However, it lauded FCC for freeing up additional 30 MHz, CTIA Pres. Tom Wheeler said, saying: “Consumers should welcome the FCC’s decision to take spectrum away from satellite licensees who could not even make it over the first hurdle of deploying their satellites.” But ATC decision marks “gigantic giveaway that will cost taxpayers billions of dollars,” he said. “Satellite companies have claimed they need land-based cell towers in order to compete because consumers have not found satellite-only offerings attractive,” he said. “In the same breath they claim these new technical rights will not help subsidize their satellite operations.”

Comr. Copps dissented in part, raising concerns that FCC not turn away from “a substantial amount of rare globally harmonized spectrum.” On decision to reallocate 10 MHz of MSS spectrum to advanced wireless services, Copps said he stood behind goal of providing spectrum to new terrestrial services and would have provided that much spectrum. “My preference, however, was to choose less problematic frequencies,” he wrote. U.S. led fight for globally harmonized spectrum in 1992, but soon decided to allocate 10 MHz of international MSS band to domestic PCS use, he said. That reduced by 1/3 amount of globally harmonized MSS spectrum available to new MSS operators. “Now we reallocate 50% more of the remaining globally harmonized MSS spectrum to AWS [advanced wireless services], leaving MSS licensees with only a third of what was originally fought for by U.S. negotiators,” he said. “This will raise costs of satellite design and construction, make transnational interference coordination more difficult, especially where satellite and terrestrial licensees must coordinate and may further erode U.S. credibility internationally when we next fight for harmonized spectrum.” He also said claims of interference between MSS and PCS were raised “extremely late” in this proceeding and potential interference implications “are poorly understood, at best.”

Proposal on 1910-1920 MHz says unlicensed PCS spectrum, in whole or in part, could be paired with 1990-2000 MHz to support 3G deployment or could be used to support relocation of other wireless licensees. FCC said it concluded 1920-1930 MHz should be kept for unlicensed PCS use and sought comment on whether it should provide additional flexibility in that band as well as any additional spectrum that would be kept for unlicensed PCS use at 1910-1920 MHz. Proposal also tees up for comment potential uses for MDS spectrum at 2155- 2160/62 MHz and emerging technology band of 2160-2165 MHz. It seeks feedback on what parts of 2155-2180 MHz “could be suitable” for advanced wireless use. For some of those bands, FCC has competing proposals pending on how they should be used and agency’s action has been closely watched for whether it would shape outcome of any of other proceedings. Because agency seeks comments only on those scenarios, there are no immediate changes, sources said. Nextel last fall opposed plan by MDS operators to move from 2150-2162 MHz by relocating to 1910-1916 MHz and 1990-1996 MHz to clear way for FCC to auction 1710-1755 MHz and 2110-2155 MHz for 3G. Nextel said that would conflict with its proposal that agency redesignate 1910-1915/1990-1995 MHz in exchange for other spectrum it would give up under 800 MHz spectrum swap plan.

“While the FCC decided to give MSS companies one last chance toward commercial viability by allowing them to provide an ancillary terrestrial service on a limited basis, we are encouraged by the Commission’s pledge that this component must be fully integrated with the operators’ satellite service before it is allowed,” AT&T Wireless Vp- Federal Affairs Douglas Brandon said: “We urge the Commissioners to keep a watchful eye on the remaining MSS licensees and reclaim additional spectrum if it goes unused.”