Industry Perspective: FCC Should Grant 700 MHz Waiver Requests
December 22, 2009
By Tom Magee
Public-safety agencies and the FCC have been frustrated for years by the inability to develop a single, interoperable wireless broadband network for the nation’s first responders. It has been more than two years since the FCC revamped the 700 MHz band to accommodate a public-safety private network. So where are we now?
FCC efforts to auction the 10 megahertz in the upper 700 MHz band (758 – 763/788 – 793 MHz) to a commercial entity failed because of uncertainties surrounding the required public/private partnership and the inability to quantify buildout costs. This 10 megahertz of D block spectrum remains unused, and the FCC and Congress are now debating what to do with it. Meanwhile, the 10 megahertz of broadband public-safety spectrum (763 – 768/793 – 798 MHz) licensed to the Public Safety Spectrum Trust (PSST) is also idle.
Rather than wait for a new comprehensive solution for the D block and the 10 megahertz licensed to the PSST, more than a dozen state and local jurisdictions — and one commercial entity — have commendably requested waivers from the FCC to allow them to deploy local and regional public-safety broadband systems using the PSST spectrum. Counting the latest waiver petition filed by Los Angeles, these petitions reportedly would cover 51 million people.
In August, the FCC asked the public to comment on whether it should grant the waivers or find an alternative. The pleading cycle is over. To no one’s surprise, the majority of comments and reply comments support granting the waivers for compelling reasons. The best reason, of course, is that allowing these systems to get under way will initiate the 700 MHz broadband rollout so that we can all stop dreaming of a public-safety broadband network and start building it.
FCC Chairman Julius Genachowski certainly knows that to make anything happen you need to start somewhere and allow momentum to build. The FCC and public-safety agencies nationwide can use these early buildouts to obtain crucial real-world information regarding design and deployment challenges, interoperability realities, equipment and service functionality, and of course, deployment costs. Most importantly, public-safety broadband systems will start helping protect property and save lives, employing a variety of eye-popping applications such as CAD, mobile offices, video monitoring of crime scenes and other incidents, and field access to criminal databases, motor vehicle records, building floor plans and medical information.
Waiver applicants are eager to deploy, and others likely will follow with their own waiver requests, as public-safety agencies across the country look to deploy wireless broadband systems. The D block auction failed because commercial entities found it too risky to commit to build a national, hybrid public-safety/commercial broadband network. Allowing these pioneer waiver petitioners to build their local and regional networks will remove some of that risk, providing the eventual D block licensee — whether a commercial or public-safety entity — a better understanding of what to expect.
Many waiver petitioners claim that they have limited amounts of time to construct their systems because of budgeting, stimulus funding or ongoing deployment concerns. Therefore, the commission should strike while the iron is hot. The Obama administration — through the National Telecommunications and Information Administration (NTIA) —has asked the commission to resolve the “open policy questions” raised in the ongoing 700 MHz rulemaking proceeding before acting on the waiver petitions. Not surprising considering Chairman Genachowski’s ties with the president, FCC Public Safety and Homeland Security Bureau (PSHSB) Chief Jamie Barnett predicted recently that the public-safety section of the national broadband plan due in mid-February will contain broad pronouncements and will likely run about 20 pages. It appears that some — or perhaps all — of the policy questions will be addressed.
Overall funding for the national rollout remains a huge concern, but agencies that are ready, willing and able to deploy should be allowed to do so. Many propose a public/private partnership allowing public safety to leverage commercial networks while still providing priority access to public safety. Barnett has expressed confidence in this approach, which is supposed to avoid duplicating facilities, to create economies of scale for equipment purchases and allow ongoing system improvements to be driven by commercial as well as public-safety demands. AT&T’s cost estimate contends that a leveraged network would remove $26 billion from the estimated $61 billion cost of a stand-alone network over 10 years.
However, technology and interoperability concerns remain. Public-safety agencies almost universally endorsed the Long Term Evolution (LTE) standard, along with AT&T, Verizon Wireless and several equipment manufacturers, based presumably on the assumption that agencies must adopt a specific technology to ensure interoperability. Sprint Nextel and Clearwire reject that view. They contend that their 2.5 MHz WiMAX system is a better option for many public-safety agencies and argue that competition will lead to lower prices. Historically, the commission hasn’t made technology determinations. However, it was disclosed recently that the FCC is considering a single technology to deploy and is looking hard at LTE.
Some argue that granting the waiver petitions would strand these pioneer local and regional systems when the national rollout finally occurs. But if the FCC were to mandate LTE technology, this risk would appear to be addressed. Moreover, building on National Public Safety Telecommunications Council (NPSTC) broadband task force recommendations, PSST last week released what in effect could be a “roadmap” for the FCC, which contains the “minimum requirements necessary to allow localities and regions to build out local systems as part of the nationwide network.”
A host of legal issues regarding spectrum leases and other matters will arise if the waivers are granted and public-safety agencies are allowed to negotiate with PSST. Should the lease be a “spectrum manager” lease or a de facto transfer lease? How do you address renewal rights, liabilities, scope of use, control over the license and other considerations? And should agencies have to compensate PSST?
For now, however, there are compelling reasons for the commission to grant these existing and future waiver requests.
Tom Magee is a partner with Keller and Heckman, a law firm in Washington that represents public-safety entities, electric utilities, oil and gas companies, and other infrastructure companies regarding RF spectrum and FCC licensing matters. E-mail comments to firstname.lastname@example.org