Posted by: Nicholas P. Miller, Partner, Miller & Van Eaton, PLLC
There was another pair of shoes thrown last week. It occurred in Washington DC, when leaders in Congress, not frustrated Iraqis, took aim at the Federal Communications Commission.
The current Chair of the FCC, Republican Kevin Martin, has been broadly attacked to the point of being investigated for manipulating FCC processes in ways inconsistent with the agency’s own rules and in ways designed to frustrate public participation and effective consideration by other commissioners [Link]. Congress reacted strongly to statements by the Chairman that “business would continue as scheduled” in regular Commission meetings in mid-December and mid-January. In a letter dated Dec. 12, 2008, and unlike any previous in my memory, presumed Senate & House Committee Chairs Senator Rockefeller (D-WV) and Henry Waxman (D-Ca) said: Stop the boat. Focus on the Digital TV transition. And stop trying to push through major policy changes as a lame duck Commission.
Chairman Martin finally conceded it was time to stop further major Commission actions until the Presidential Transition is completed and cancelled the December and January Commission meetings, although items could still be approved with written consent of the other Commissioners.
This concession means the FCC will not likely act on any major policy issues until the Obama administration designates a new FCC Chair. Congress will also have to confirm a fifth member to the FCC as Commissioner Deborah Tate must leave the Commission upon the swearing in of the 111th Congress. Until then the FCC will be stalemated 2-2..
So why does this “inside baseball” story matter to City Attorneys? Let me list the reasons:
• The wireless industry’s effort to get FCC preemption of local cell tower zoning is stopped dead, for now. (http://fjallfoss.fcc.gov/cgi-bin/websql/prod/ecfs/comsrch_v2.hts)
• The reconsideration petition filed by local governments challenging the Commission’s preemption of local cable franchising for incumbent cable operators is further deferred. (http://fjallfoss.fcc.gov/cgi-bin/websql/prod/ecfs/comsrch_v2.hts)
• The reallocation of telephone subsidies which support rural and high cost subscribers will be left to the next administration. (http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-262A1.pdf); and
• Most important, the 700 MHz or “D Block” public-private public safety interoperability auction rules remain undetermined. ( http://fjallfoss.fcc.gov/cgi-bin/websql/prod/ecfs/comsrch_v2.hts)
Later blogs will devote more time and comment to the 700 MHz D Block issue. For now, consider these orientation comments:
1. Would 1st Responders benefit from Broadband communications capabilities on every portable laptop in every emergency vehicle?
2. Would metropolitan areas and local governments benefit from broadband and interoperable mobile?
3. Would all citizens benefit from universally available and very fast wireless internet access?
4. Would inner city and under-served rural areas benefit from robust, high-speed internet access without the expense of building wires to every location?
Too good to be true? Not if the FCC sets the right rules for the merged construction and operation the 700 MHz D Block with the existing allocation of 700MHz wideband public safety spectrum which comes available in February 2009 after television broadcasters move from analog to digital transmission.
If the D Block is successfully merged into a common network with the public safety allocation, 20MHz of spectrum would be available nationwide. This is sufficient bandwidth to meet the entire wish-list above.
Unfortunately, economics and physics have a habit of intruding on wishlists. In this case, a nationwide system of antennae and network links must be built (estimated to cost at least $10 Billion). Reception devices (PC cards @ $50-$100 each) need to be provided to each user. And someone must operate the network.
The Public Safety wideband 10 MHz has been licensed to a national consortium of public safety operators. [www.psst.org] But that group, its member agencies, and state and local government in general, do not have the financial resources to build a nationwide wireless network. The FCC had a plan to do this. [In the Matter of Auction of the D Block License in the 758-763 and 788-793 MHz Bands, Order, 23 FCC Rcd 5421 (2008)] The FCC tried to auction the D Block to a private operator, with the requirement that the successful bidder would operate the D Block along with the 10 MHz of wideband spectrum already set aside for public safety. The FCC hoped the D Block bidder would build a single nationwide network, serving both private and public wireless users. No one accepted the offer.
So the FCC has been reconsidering how to structure a new auction of the D Block. And until the Congressional letter, the lame-duckedness of the current FCC created risks. Many private sector players are trying to get the FCC to adopt quick D Block auction rules, relieving the successful bidder of the most costly obligations associated with serving public safety and building a true nationwide system.
The freeze on major FCC actions stopped this raid on public spectrum. Now state and local governments must nail theses shenanigans permanently shut. We all will benefit from a broadband, nationwide, wireless system that is soundly financed, built universally and able to support all levels of local government requirements. Doing it right will resolve major public safety communications problems as well as major problems integrating rural areas and others into the national internet economy.
More later on how the D Block/Public Safety 20MHz system should be structured.