Congress May Take On White Spaces Even if FCC Moves on Order

FCC Chmn. Martin is starting to look more closely at a white spaces order, which would open unused broadcast TV spectrum between 72 and 698 MHz to unlicensed use after the DTV transition in 2008, sources said Fri., confirming earlier reports (CD Feb 27 p1). “Martin’s office is looking at this,” said a regulatory attorney who follows the issue: “Right now it’s very subterranean, but I wouldn’t be surprised to see this become more public in the next couple of months.”

“The question is whether they [the FCC] have the authority,” Sutherland told reporters Fri. after a Capitol Hill debate sponsored by the Progress & Freedom Foundation. “They have had a couple of cases recently where rules that they issued were then later overturned -- the broadcast flag, for example.” One advantage to enacting a statute is that it gives the FCC “statutory authority” to act, she said. Sutherland said Hill staff will reach out to the Commission: “We'd have to talk to them to see if they believe they have the proper statutory authority.”

MSTV Pres. David Donovan told us broadcasters will work hard to make sure Congress is aware of interference concerns for the 73 million U.S. TV sets not connected to cable or satellite networks. “I've been around long enough not to make any predictions regarding legislation,” he said: “This is an extremely important issue for broadcasters. We really have to get our message out.”

Donovan said MSTV is also closely monitoring the FCC. “There has been a proceeding pending over at the FCC for some time now and, frankly, they ran into technical issues,” he said: “The bottom line is that the action right now is in the Senate Commerce Committee, and that’s where we're going to work it.”

Paul Kolodzy, former dir. of the FCC Spectrum Policy Task Force, which advocated opening broadcast white spaces to unlicensed use in its final report in 2002, told us he was pleased to see the Senate looking closely at the issue, and House members appear to be contemplating companion bills. “I believe that there’s momentum building,” he said: “They're bringing in people to talk about all the issues. Staff is getting more comfortable.”

On the logistics of legislation, Jaime Hjort, an aide to Sen. Allen (R-Va.), who introduced a rival white spaces bill, said her boss was ready to talk to Stevens about a compromise. Hjort also said members of the House are starting to express interest in a companion bill and she expected to see legislation introduced.

Sutherland said white spaces legislation may be part of an omnibus telecom bill, but no decisions have been made. Stevens and Sen. Inouye (D-Hawaii), ranking member of the committee, have yet to hold discussions, she said. “We're not in a position where we're announcing the various titles that are going to be in the telecom bill,” she said: “No final decisions have been made.”

Kolodzy said the focus must be on “how to take a resource that we have and use it the best way for our country.” Studies have demonstrated unused broadcast spectrum exists. “The jury has pretty much come back and said it’s out there, there’s spectrum out there that’s not being transmitted in,” he said.

But Donovan said Congress and the FCC must proceed with caution. “Interference is not measured at the tower,” he said: “It’s measured at the TV set. It’s measured in every single living room or bedroom or kitchen.” He said the FCC has guessed wrong before.

“When I was at the Commission, I was told that you could put commercial use in with public safety,” he said. “Engineers said it would work just fine. Years later we have a Nextel spectrum [issue] and we have to separate Nextel from other spectrum. If you guess wrong, you're going to have a real problem.”