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ENTELEC Washington Report, October 2002

Date: Oct 01, 2002


GENERAL

FCC Releases Staff Report on the NTIA Study of Current and Future Spectrum Use

Chairman of FCC Creates Spectrum Policy Task Force

One Regulatory Review Process is Completed, While Several Others Begin

FCC Clarifies Application Dismissal and Return Policy.

MICROWAVE

FCC Adopts Changes to Microwave Rules

LAND MOBILE

"Consensus" Plan Filed in 800 MHz Band Proceeding

FCC Accepts Frequency Coordination Consensus for Certain Applications in the 150-470 MHz Band

Service Rules Adopted in Government Transfer Band Reallocation Proceeding

GENERAL

FCC Releases Staff Report on the NTIA Study of Current and Future Spectrum Use

Use by the Energy, Water and Railroad Industries

In July 2002, the Federal Communications Commission released a Staff Report on the current and future use of spectrum by energy, water and railroad service providers and the Commission's efforts to address the spectrum needs of these industries.  Mandated by Congress (Public Law 106-553), the FCC Staff Report responds to a study conducted by the Department of Commerce, National Telecommunications and Information Administration ("NTIA"), directed by the same statute, regarding spectrum use by these industries.  The NTIA Study acknowledged the role of these industries in the protection of our nation's critical infrastructure and investigated the current spectrum uses and future spectrum requirements of these industries.  In conducting its study, the NTIA solicited comments from entities providing energy, water and railroad services, as well as the federal departments and other agencies responsible for regulating the core operations of these companies.  Subsequent to the submission of the NTIA Study to Congress in January 2002 and in preparation for its report, the FCC also solicited public comment on the findings identified by the NTIA.

The FCC Staff Report begins by noting that the NTIA Study categorized three main areas of concern identified by commenters: (1) insufficient access to spectrum; (2) spectrum congestion and interference; and (3) the limitations of commercial technology.  Though noting that the NTIA reportedly received a "limited response" as to whether these industries utilize spectrum efficient technologies, the FCC stated that commenters "generally agree" that these industries use wireless communications for critical voice and data processing, as well as compliance with operational, regulatory or safety-related requirements.  Many of the commenters emphasized that without adequate access to reliable wireless services, companies will be "unable to address major service interruptions due to natural disasters or equipment malfunctions, " thereby threatening the infrastructure maintained by these industries.  The FCC Staff Report proceeded by describing several examples of agency actions that have had a positive impact on the energy, water and railroad industries and stated that the Commission is "continually evaluating spectrum implications with regard to promoting safety of life and property."

  1. Access to Spectrum.  In its Report, the FCC stated that, since 1995, the agency has evaluated over 56 megahertz of spectrum for potential use by the affected industries.  This spectrum includes (1) the 27 megahertz of spectrum transferred from Government to non-Government use, which may lead to the development of new services for these industries; (2) the 6 megahertz of spectrum in the 700 MHz band designated as "Guard Band" spectrum; (3) spectrum in the 4.9 GHz band that may become available, depending on whether or not the FCC expands the definition of "public safety" to include these industries; and (4) spectrum in the Private Land Mobile Radio ("PLMR") bands below 512 MHz, more of which may become available if unused spectrum is identified through the 2001 PLMR Spectrum Audit.

In response to the proposal made by the American Petroleum Institute, the United Telecom Council and others for an exclusive spectrum allocation for Critical Infrastructure Industry companies in the bands below 512 MHz, the agency stated that: "[A]lthough spectrum is available in this band, the spectrum is licensed on a shared basis.  Thus, energy providers cannot receive exclusive spectrum in this band.  However, access to additional spectrum in this band is possible."

Spectrum Congestion and Interference.  According to the agency, the FCC uses several methodologies to alleviate spectrum congestion and interference.  The Report specifically cited two rulemaking proceedings - 900 MHz Multiple Address System ("MAS") and 800 MHz Public Safety spectrum - as examples where the agency has examined interference concerns.  The FCC stated that the 900 MHz MAS proceeding "exemplifies the Commission's efforts to address the needs and concerns of private internal users."  Currently in the 800 MHz proceeding, the FCC is addressing the public safety community's interference problems, which the agency believes will also be important on a broader level to other PLMR users. 

The Commission also pointed to its "Refarming" proceeding as a good illustration of its efforts to promote more efficient spectrum use through actions such as the consolidation of the service pools, licensing the 12.5 kHz "offset" channels as regularly assignable high power channels, and creating narrowband equipment certification deadlines.  Likewise, Band Managers, described by the agency as the "next generation" of frequency coordinators, are seen as a method for overcoming the obstacles facing spectrum users with smaller, more localized needs (e.g., the inefficiencies of Geographic Area Licensing for these users).

The Report discusses how flexibility in the FCC's Rules and Regulations helps the agency meet the needs of these industries.  Through the grant of Special Temporary Authority and Rule Waivers, the Commission said that it has sufficient flexibility to resolve interference and congestion problems in emergency circumstances that may affect users in these industries.  As it looks toward the future of spectrum use by energy, water and railroad service providers, the FCC said that it believes that access to commercial satellite services and the expansion of services in the 70/80/90 GHz bands may be suitable to meet some of the communications needs of the industries.    

Limitations of Commercial Service Providers.  The NTIA Study discussed how many commenters raised the concern that commercial service providers are often unable to fully meet the communications needs of the designated industries.  The FCC noted that it is currently examining the extent to which wireless commercial services can meet the needs of entities operating in the 800 MHz band.  Along those lines, the agency stated that there has been a significant growth in Commercial Mobile Radio Services and that some of these services may now be sufficient to meet new requirements.  Parties, therefore, should "take into account technological and regulatory developments that have occurred in recent years."

The FCC Staff Report concluded by stating that the agency is sensitive to the needs of these industries.  However, the designated industries were encouraged to utilize more spectrum-efficient technologies and take advantage of recent developments and growth in commercial wireless technology (including satellite, terrestrial and civil satellite services).  Moreover, energy, water and railroad service providers should utilize sharing and new methods of licensing "to ensure that efficient and effective use of spectrum is achieved."  The Commission stated that "while it is sensitive to needs involving domestic security concerns," the agency must carefully balance the spectrum needs of these industries to "maximize the use of the airwaves, which are a finite public resource."

Chairman of FCC Creates Spectrum Policy Task Force

Federal Communications Commission Chairman Michael Powell recently announced the formation of a Spectrum Policy Task Force.  The role of the Task Force is to conduct an evaluation of existing spectrum policies and make recommendations for improvements.  Chairman Powell's vision for spectrum policy includes making more efficient use of spectrum, implementing a market-oriented approach towards allocation, reconciling commercial and government use of spectrum, and fostering innovation.

In a Public Notice issued on June 6, 2002, the FCC sought comment on several issues relating to the agency's spectrum policies: market-oriented allocation and assignment policies, interference protection, spectral efficiency, public safety communications, and international issues.  Among the comments filed in response to the Public Notice were those of the American Petroleum Institute ("API") and the United Telecom Council ("UTC"). 

In its comments, API emphasized the continuing need for private wireless communications systems.  The organization asserted that a traditional market-oriented approach to spectrum allocation is inappropriate when applied to oil and gas company licensees, and it explained that geographic area licensing does not adequately meet the coverage needs of many private radio users.  API therefore expressed a strong preference for a site-by-site licensing approach, noting that band managers may be an option for auctioned spectrum.  API's comments also supported the preservation of current spectrum allocations, as well as an exclusive allocation of channels for critical infrastructure industries.  This measure would reduce congestion and interference and ensure adequate access to spectrum for important private communications systems.

UTC's comments addressed the effectiveness of a market-oriented allocation approach, interference protection, spectrum efficiency, and public safety communication.   First, UTC explained that a market-oriented approach fails to consider several non-economic factors.  Like API, UTC advocated the use of site-by-site licensing over geographic area licensing.  UTC also prefers policies that would provide licensees with greater flexibility and account for the specialized nature of utility operations.  Second, UTC recommended that the FCC reduce harmful interference among co-channel users by: (1) allocating to utilities and other public safety radio services exclusive frequency bands; (2) adopting receiver standards; and (3) adopting specific procedures for the resolution of interference disputes.  Third, UTC reminded the Commission of its obligation not only to maximize spectrum use, but also to regulate wireless services for the purpose of promoting safety of life and property.  Finally, UTC commented on the inadequacy of a "priority access service" in meeting public safety requirements.

The Task Force conducted four public workshops during the months of July and August 2002.  Participants debated spectrum policies, with a focus on the following topics: experimental licenses and unlicensed spectrum, interference protection, spectrum efficiency, and spectrum rights and responsibilities.  The Task Force plans to report its findings and conclusions to the Commission by the end of October 2002.  It is anticipated that the Commission will follow up with the release of one or more Notices of Inquiry and/or Notices of Proposed Rule Making, which could lead to fundamental changes in spectrum allocation policy.

One Regulatory Review Process is Completed, While Several Others Begin

The Federal Communications Commission is required by statute to conduct various periodic reviews of its Rules and Regulations.  For instance, Section 11 of the Communications Act of 1934, as amended, requires the Commission to conduct a biennial review of certain of its regulations, with the goal of repealing or modifying any such regulations that it finds are no longer in the public interest.  Additionally, under the Regulatory Flexibility Act of 1980, 5 U.S.C. § 610, the agency is required to consider the potential economic impact of its rules on small entities.  Below is a summary of recent regulatory review actions by the Commission that may be of relevance to energy industries.

FCC Completes 1998 Biennial Review of Part 90 Rules

On May 23, 2002, the Commission released a Memorandum Opinion and Order ("MO&O") and Second Report and Order ("Second R&O") in its proceeding that entailed a comprehensive review of the agency's Part 90 rules governing the Private Land Mobile Radio ("PLMR") Services (WT Docket No. 98-182).  The MO&O responded to various Petitions for Reconsideration of certain aspects of the Report and Order ("R&O") adopted in this proceeding in June 2000, while the Second R&O addressed issues raised by the Commission in its Further Notice of Proposed Rule Making ("Further Notice"), also adopted in June 2000. 

In the R&O, the Commission had amended its rules to remove five VHF Industrial/Business Pool frequencies (the so-called "color dot" frequencies) from Part 90 and place them into a new Multi-Use Radio Service ("MURS") to be licensed by rule (i.e., without any individual licensing requirements) under Part 95.  The Commission defined MURS as a two-way, short-distance communication service for the personal or business activities of the general public.  In their Petitions for Reconsideration, several parties objected to the Commission's decision to include individual, general consumers within the class of users that are licensed by rule to utilize the MURS frequencies; these parties argued that such expanded use by consumers will result in increased congestion and interference that will hamper effective use of these frequencies for business communications.  The Commission, in its MO&O, reaffirmed its decision to allow personal operations on these frequencies, but adopted certain technical restrictions aimed at addressing the concerns of the complaining parties.  All previously licensed operations on the new MURS frequencies (as of November 12, 2000) are grandfathered.

The Commission also had decided, in its R&O, to revise Section 90.179 of its rules to allow Public Safety Pool licensees to share their radio facilities with Federal government entities, but it declined to allow public safety licensees to share their facilities with industrial/business entities.  The American Association of State Highway and Transportation Officials ("AASHTO") asked the Commission to reconsider this decision so as to allow public safety agencies to share their spectrum with "utility companies."  The Commission, however, denied AASHTO's request in its MO&O, as it believes that such spectrum sharing could unduly deplete public safety spectrum. 

Additionally, the Commission's MO&O granted the request of the Personal Communications Industry Association ("PCIA") that the FCC update its airport terminal use ("ATU") list.  Forty channel pairs in the Industrial/Business Radio pool are reserved on or near certain airports for commercial air transportation services.  PCIA argued that the Commission's list of covered airports -- which had not been amended in more than fifteen years -- should be updated to reflect changing population and travel patterns.  The Commission agreed and revised the ATU list to include certain additional airports specified by PCIA.  Existing non-airport terminal business radio licensees located in the vicinity of the "new" ATU airports may continue to operate in accordance with their current authorizations and may assign their licenses without forfeiting their grandfathered status.

The Commission had sought comment in its Further Notice on a proposal by the American Automobile Association ("AAA") to remove the low power restriction from certain 12.5 kHz UHF channels dedicated for dockside cargo handling.  The thirty-one dockside channels, which are subject to a power limitation of 2 watts, are available to eligibles in the Industrial/Business Pool for use on a secondary basis to cargo handling operations at docksides.  AAA urged the Commission to eliminate the power restriction on seven of these channels.  The Commission, in its Second R&O, granted AAA's request, as it agreed with AAA that doing so will alleviate congestion and promote spectrum efficiency by enabling licensees to pair these channels with channels in the Automobile Emergency Radio Service or other channels for use as high-powered repeater stations.

The new rules adopted in the MO&O and Second R&O are to take effect 30 days after Federal Register publication. 

FCC to Review Wireless, Engineering and International Regulations

In a series of Public Notices released in late September 2002, the FCC announced that it is initiating its biennial regulatory review process with respect to the regulations administered by various of its bureaus and offices, including those of the Wireless Telecommunications Bureau ("WTB"), the Office of Engineering and Technology ("OET"), and the International Bureau ("IB").   

The Public Notices do not propose any specific rule changes, but instead invite parties to offer suggestions as to what rules should be modified or repealed.  The rule parts that contain regulations governed by the WTB (and that are thus subject to the inquiry) include, among others: Part 1 (Practice and Procedure); Part 17 (Construction, Marking, and Lighting of Antenna Structures); Part 80 (Maritime Service); Part 90 (Private Land Mobile Radio Services); and Part 101 (Fixed Microwave Services).  The OET administers regulations contained in Part 2 (Frequency Allocations and Radio Treaty Matters), Part 5 (Experimental Radio Services), and Part 15 (Radio Frequency Devices), while the regulations administered by the IB include Part 25, (i.e., the rules governing satellite communications). 

In each instance, the deadline for filing responsive comments is October 18, 2002, and the Reply Comment deadline is November 4, 2002.  Given the broad and open-ended nature of the Commission's inquiry, it is likely that a wide range of proposals with potential impact upon private wireless licensees (including energy industry companies) will be presented to the Commission in these newly-initiated regulatory review proceedings.  The Commission can then be expected to follow up with a Notice of Proposed Rule Making with regard to any proposals that it deems to have potential merit, thereby providing a subsequent opportunity for public comment before any rule changes are adopted.

Regulatory Flexibility Act Inquiry is Initiated

The Commission, on September 6, 2002, issued a Public Notice inviting comment on its "plan for review" of certain sections of its Rules and Regulations pursuant to the Regulatory Flexibility Act of 1980.  The purpose of this review is to identify which rules might have a significant economic impact on small businesses and whether the rules should be modified or eliminated to minimize the impact on these entities.

The Public Notice invites comment on specific rule sections that the agency has identified for review, including several provisions under Part 90.  In reviewing each rule, the Commission has stated that it will consider: (1) the continued need for the rule; (2) the nature of complaints or comments received from the public concerning the rule; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other Federal rules, and to the extent feasible, with State and local government rules; and (5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.

One rule section that has been targeted for review and that may be of relevance to some energy industry companies is the rule governing Secondary Fixed Signaling Operations (Section 90.235).  In particular, some companies may utilize systems authorized pursuant to this rule section in order to provide monitoring capabilities, similar to a Multiple Address System station. 

The period for submitting comments in response to the Public Notice closes on November 8, 2002.  As in the case of the biennial review proceedings described above, the Commission presumably will issue a Notice of Proposed Rule Making before adopting any rule changes in response to the Public Notice. 

MICROWAVE

FCC Adopts Changes to Microwave Rules

The Federal Communications Commission, on July 31, 2002, released a Report and Order ("Order") in its proceeding (WT Docket No. 00-19) to amend various of its regulations governing the Fixed Microwave Services (Part 101).  The Order follows up on a Notice of Proposed Rule Making ("NPRM") requesting comment on: (1) several proposals to streamline the Part 101 rules; (2) a Petition for Rule Making filed by the Telecommunications Industry Association ("TIA") aimed at making the 21.2-23.6 GHz ("23 GHz") band more accessible to fixed service users; (3) whether and, if so, how the Commission's licensing approach to Part 101 spectrum should be modified to implement the Balanced Budget Act of 1997 ("BBA-97"); and (4) whether to allow increased operational flexibility in the microwave bands.  Relevant portions of the Order are summarized below.

Streamlining of Part 101

In its Order, the Commission adopted its proposal to make the point-to-point frequency bands 952.95-956.15 MHz and 956.55-959.75 MHz available for conditional authorization pursuant to the rules presently applicable to other bands.  However, the Order failed to address a proposal made in the proceeding by the American Petroleum Institute that the agency extend conditional licensing to the site-based Multiple Address System ("MAS") bands as well.  The Commission also decided, it its Order, to adopt its proposal to allow Private Operational Fixed Service ("POFS") licensees to use their excess capacity to carry common carrier traffic.  POFS licensees will not be permitted to offer their own common carrier services unless they first becoming licensed as common carriers.

The NPRM had sought comment on a proposal by CAI Wireless Systems, Inc. ("CAI") that the Commission eliminate its current prohibition against using POFS frequencies in the 11 GHz band for the final radio link in the transmission of program material to cable television systems, multipoint distribution systems and master antenna television systems.  The Commission declined, in the Order, to adopt CAI's proposal.  In so doing, the Commission noted the concern of some commenting parties that allowing unrestricted video use in the 11 GHz band could deplete the amount of spectrum available in that band for the relocation of microwave systems from the 2 GHz band.  The Commission reserved the right to revisit this issue at a later date.

TIA'S Petition for Rulemaking

TIA proposed a channel plan for the 23 GHz band whereby the spectrum would be divided into twenty-four pairs of 50 MHz channels, each subdivided into wideband and narrowband channels of varying sizes.  TIA also proposed to make the entire band available to common carrier and POFS users, rather than the current approach in which half of the band is reserved for each type of user.  The Commission adopted these proposals in its Order.

In response to TIA's proposal to change the frequency tolerance standard for the 23 GHz band from 0.03% to 0.001%, the FCC determined that TIA's proposed standard of 0.001% will apply only for digital radios. The following less stringent frequency tolerance standards were adopted for analog radios: (1) 0.03% for channel bandwidths greater than 30 MHz; and (2) 0.003% for channel bandwidths of 30 MHz or less.  However, if an analog radio operator causes harmful interference to stations operating with the more stringent standards, the burden will be on the analog radio operator to resolve the problem.  Equipment authorized under existing licenses will be grandfathered, while new licensees will be required to meet the new standards within twenty-four months of the effective date of the new rules. 

The Commission also adopted TIA's proposal to employ a spectrum efficiency requirement for the 23 GHz band of 1 bps/Hz for all transmitters using digital modulation.  Existing licensed equipment will be grandfathered without an efficiency rate, but all new (digital) equipment applied for or authorized more than twenty-four months after the rule's effective date will be required to meet the new standard.  In addition, the agency adopted TIA's proposal that it permit the use of smaller antennas in the 23 GHz band (in particular, 12-inch or 18-inch high performance antennas).  On the other hand, the FCC rejected TIA's proposal that it designate an additional 200 MHz of spectrum in the 23 GHz band for low power operations. 

Balanced Budget Act of 1997

The BBA-97 requires the Commission to resolve competing mutually exclusive license applications through competitive bidding, with the exception of applications for "public safety radio services" and other specifically exempt categories.  In its NPRM, the Commission asked whether the BBA-97 requires it to alter its licensing approach in the microwave bands above 2 GHz.  The Commission stated in its Order that it will not make any changes at this time to its existing Part 101 licensing schemes, nor will it presently designate any particular Part 101 spectrum as "public safety radio services."  However, the Commission may further examine such issues in a future proceeding. 

Operational Flexibility

The Commission inquired in its NPRM as to whether regulatory flexibility should be permitted in the Part 101 spectrum bands so as, for example, to permit licensees to conduct mobile operations on a co-primary basis to fixed point-to-point operations.  In light of the concerns about interference raised by a number of commenting parties, the Commission concluded in its Order that it would not permit mobile operations on general Part 101 spectrum at this time. 

The new rules adopted in the Order will take effect 60 days after Federal Register publication. 

LAND MOBILE

"Consensus" Plan Filed in 800 MHz Band Proceeding

In a Notice of Proposed Rule Making ("NPRM") adopted in March 2002 (WT Docket No. 02-55), the Federal Communications Commission requested comment on how to remediate interference to public safety communications in the 800 MHz band that is being caused primarily by the commercial operations of Nextel Communications, Inc. (“Nextel”).  The NPRM discussed potential solutions to the interference problem, including a controversial band reconfiguration proposal presented by Nextel that would, among other things, require all Business and Industrial/Land Transportation (“B/ILT”) licensees in the 800 MHz band either to relocate at their own expense to the 700 MHz or 900 MHz band or to accept secondary status with respect to their existing channel assignments in the 800 MHz band.

The vast majority of commenting parties -- in their initial comments filed at the Commission on or before May 6, 2002 -- expressed strong opposition to Nextel's proposal.  However, no consensus emerged as to how the Commission should instead proceed.  Rather, various alternative band realignment plans were presented, and some parties urged the Commission to employ technical and/or market-based approaches that do not necessitate the reconfiguration of the 800 MHz band.

In joint Reply Comments filed on August 7, 2002, a coalition consisting of public safety entities, private wireless groups and Nextel filed a "consensus" proposal with the Commission.  In essence, the proposal entails the reconfiguration of the 800 MHz band so as to create two separate, contiguous spectrum blocks: one block at 806-816/851-861 MHz for non-cellularized "high-site" systems (including public safety and private industrial systems) and one block at 816-824/861-869 MHz for systems with a cellular-like architecture (primarily Nextel).  Under this proposal, all licensees on channels presently designated for B/ILT use would be able to remain on their existing spectrum assignments, but most entities licensed to operate on the General Category channels would be required to retune or relocate their systems to alternative spectrum in the 800 MHz band.  In addition, Nextel's spectrum in the 900 MHz band would be redesignated for B/ILT and high-site SMR use, and 800 MHz band incumbents that elected to voluntarily relocate to this spectrum would be eligible for a 50 kHz channel assignment for each 25 kHz 800 MHz channel that is vacated.  The plan also envisions that, in exchange for various spectrum that Nextel would be forfeiting, Nextel would receive 10 MHz of spectrum in the 1.9 GHz band.  Private wireless groups that support the "consensus" plan have been negotiating with Nextel in an effort to secure reimbursement funding for private licensees that are forced to retune or replace their systems under the plan.  These groups reportedly have informed the Commission's staff that their support for the "consensus" plan is contingent upon the securing of such funding.

Some private wireless interests, including the United Telecom Council and a number of  individual utilities, declined to join the consensus efforts.  In lieu of rebanding, many of these parties continued, in their Reply Comments, to urge a case-by-case approach to resolving interference problems, coupled with various technical changes to the FCC's rules.  Still other commenting parties -- primarily cellular providers -- continued to advocate the relocation of 800 MHz public safety systems to the 700 MHz band (an approach that would require substantial legislative intervention by Congress).  Additionally, Motorola, Inc. presented an alternative 800 MHz rebanding plan that is similar in basic concept to the "consensus" proposal, but that entails a band plan that would vary by geographic region depending on how much spectrum is presently held in each area by each particular licensee group (and does not involve the grant of any new spectrum to Nextel).

On September 6, 2002, the FCC issued a Public Notice in which it requested comment on the "consensus" proposal.  In comments filed on or about September 23, 2002, most interested parties reiterated their prior views regarding the "consensus" plan and other proposals that have been presented.  Within both the private wireless and public safety communities, there appears to be some division as to whether the "consensus" represents the optimal approach.

The Commission's staff views this proceeding as a priority matter.  However, given the complexity of the issues involved and the diversity of views presented, it is likely to be at least several months before the Commission takes any further action in this proceeding.

FCC Accepts Frequency Coordination Consensus for Certain Applications in the 150-470 MHz Band

In a Public Notice released on June 6, 2002, the Federal Communications Commission approved the analytical method that is now used to determine if an application in the Private Land Mobile Radio (“PLMR”) Service triggers the additional frequency coordination requirements of Sections 90.35(b)(2)(iii) and 90.175(b) of the FCC's Rules and Regulations.  In the Fifth Memorandum Opinion and Order in the Commission's “Refarming” proceeding (PR Dkt. 92-235 rel. Dec. 29, 2000), the agency directed the frequency advisory committees, which are certified by the Commission to coordinate applications for PLMR spectrum, to reach a consensus on a common analytical method for determining co-channel contour overlap and adjacent channel service/interference contour values for certain frequencies in the 150-470 MHz bands.

  1. In the "Refarming" proceeding, the FCC consolidated the twenty formerly separate PLMR service pools (e.g., Petroleum, Power) into the Industrial/Business ("I/B") pool.  Prior to the consolidation, applications were submitted to the frequency coordinator designated specifically for the particular service pool of the requested channel; as a result of Refarming and the service pool consolidation, applicants may now submit applications to any certified PLMR frequency coordinator, with certain limitations.  One of these limitations is codified under Section 90.35(b)(2)(iii) of the FCC's rules and is intended to facilitate the effective sharing of frequencies in the consolidated I/B pool without creating an adverse impact on safety-related communications.  This section provides that if a proposed interference contour overlaps the service contour of an existing station operating on certain shared frequencies (channels formerly allocated to Power, Petroleum, Railroad, Manufacturers, Forest Products, Telephone Maintenance, Motor Carrier and/or Automobile Emergency Radio Services), the applicant must seek and obtain the written concurrence of the former industry-specific frequency coordinator.  In light of this requirement, the FCC directed the frequency coordinators to develop a common analytical method for determining when an applicant must obtain written concurrence.       

Under the consensus position, the following analytical method was adopted for adjacent channel coordination.  For proposed systems offset in frequency by 15 kHz in the VHF band, the de-rating factor is 23.2 dB.  The factor is added to the co-channel interference contour value of 19 dBu, producing a 42.2 dBu (50,10) interference contour.  This results in a 37/42.2 dBu overlap criteria.  Therefore, if the proposed system's 42.2 dBu (50,10) interference contour overlaps an incumbent's 37 dBu (50,50) service contour, concurrence from the incumbent's coordinator, or the incumbent itself, will be sought.  For proposed systems offset in frequency by 12.5 kHz in the UHF band, the de-rating factor is 12.5 dB.  The factor is added to the co-channel interference contour value of 21 dBu, producing a 33.5 dBu (50,10) interference contour.  This results in a 39/33.5 dBu overlap criteria.  Accordingly, if the proposed system's 33.5 dBu (50,10) interference contour overlaps an incumbent's 39 dBu (50,50) service contour, concurrence from the incumbent's coordinator, or the incumbent itself, will be sought.  Pursuant to Section 90.35(b)(2)(iii), proposed co-channel operations trigger the concurrence requirement when the interference contour of the proposed station (19 dBu contour for VHF and 21 dBu contour for UHF stations) overlaps the service contour of the existing station (37 dBu contour for VHF and 39 dBu contour for UHF stations).

When it is determined that concurrence is necessary, Section 90.175(b) of the FCC's rules requires that a request for concurrence must be answered within twenty (20) days of the request.  In this regard, the Commission encourages the use of electronic mail to facilitate a timely response to concurrence requests.  The coordinator may recommend that the applicant adjust certain technical factors, such as power output and antenna height, to reduce potential interference.  If the applicable frequency coordinator denies the request for concurrence, it must provide a substantial showing that the proposed operations will have a materially adverse effect on safety-related communications. 

Service Rules Adopted in Government Transfer Band Reallocation Proceeding

Pursuant to the Omnibus Reconciliation Act of 1993 and the Balanced Budget Act of 1997, the Federal Communications Commission reallocated 27 megahertz of spectrum from Federal Government to non-government use in January 2002.  The reallocation included 8 megahertz of spectrum for fixed and mobile services in the 1.4 GHz band intended to relieve congestion in the existing Private Land Mobile Radio ("PLMR") bands, as well as spectrum in the 1.4 GHz band for both primary and secondary telemetering applications.  In May 2002, the agency released a Report and Order in which it adopted the service and technical rules for the reallocated spectrum.  Generally, the Commission adopted a flexible licensing and regulatory framework for this spectrum, consistent with its 1999 Spectrum Policy Statement, which articulated the agency's objectives of advancing spectrum efficiency and fostering a robust competitive environment that will promote technological development. 

Fixed and Mobile Operations: 1390-1392 MHz; 1392-1395 MHz/1432-1435 MHz

The Commission adopted flexible use licensing for this spectrum, consistent with the provisions of Part 27 of the agency's Rules and Regulations (Miscellaneous Wireless Services).  This flexibility permits licensees to offer a combination of services at any time under one license (e.g., fixed, mobile, private, common carrier), provided that its operations meet applicable interference protection requirements under Part 27.  Licensees must describe the services they will offer and designate a regulatory status to each service.  A licensee may change its regulatory status upon thirty days notice to the agency.  Licensees also have the option of operating as a "traditional" licensee or as a Band Manager that leases spectrum rights to other users. 

The Commission will assign licenses for this spectrum by geographic area.  The 1390-1392 MHz band will be divided into fifty-two (52) MEAs (Major Economic Aread), with a single 2 megahertz spectrum block in each MEA.  The paired 1392-1395 MHz / 1432-1435 MHz bands will be divided into six (6) EAGs (Economic Area Groupings), licensed as two paired 1.5 MHz channels from each band.  Because the agency intends for this spectrum to relieve congestion in the PLMR bands, the FCC concluded that it would license the paired spectrum in larger geographic area blocks in an effort to foster equipment development.  As the Land Mobile Communications Council stated in its comments to the Commission, currently there is no equipment available for fixed and mobile operations in this band.  Partitioning and disaggregation of licenses is also permitted, but requires the submission of an application for assignment to the Commission.  This spectrum will be licensed via auction pursuant to statutory requirements; although initially scheduled for September 18, 2002, the auction has been postponed pending the resolution of issues regarding reimbursement to the Federal Government for the costs incurred to vacate the band.

Telemetry Operations: 1427-1432 MHz

The remaining reallocated spectrum in the 1.4 GHz band will be available for licensing on a site-by-site basis for telemetry operations and governed under Part 90 of the FCC's rules.  Telemetry operations in the 1429.5-1432 MHz segment of the band will be licensed on a primary basis; Part 90 telemetry licensees in the 1427-1429.5 MHz band will be licensed on a secondary basis to the Wireless Medical Telemetry Service ("WMTS").  Applications for secondary telemetry operations will be considered on a case-by-case basis.  In addition, the Commission adopted a Joint Agreement proposed by the American Hospital Association (the frequency coordinator for WMTS) and Itron, Inc., an electric utility telemetry equipment provider.  Under the Agreement, the primary allocation for WMTS in the 1427-1429.5 MHz band and the primary allocation for Telemetry in the 1429.5-1432 MHz bands will be "swapped" in seven defined geographic areas (Pittsburgh, PA; Washington, DC; Richmond/Norfolk, VA; Austin/Georgetown, TX; Battle Creek, MI; Detroit, MI; and Spokane, WA). 

The agency developed a channelization plan for licensing this band that divides the spectrum into 12.5 kHz channels.  Licensees are prohibited from specifying wide areas of operations or itinerant use.  In an effort to alleviate the burden of requiring applicants for primary telemetry operations to specify each individual transmitter site, applicants will have the option of licensing fixed sites as "temporary fixed" locations that may be operated indefinitely, but only at a certain maximum distance from a designated geographical center.  All telemetry operations in these bands will require prior coordination.  In the Report and Order, the Commission amended Section 90.175 of its rules so that all frequency coordinators authorized under Part 90 will be eligible to coordinate primary and secondary telemetry operations in this band. 

In addition to the spectrum in the 1.4 GHz band, the Government Transfer Bands also include an allocation for telemetry services in the 217-220 MHz band and a general flexible use allocation in the 1670-1675 MHz and 2385-2390 MHz bands.

Washington Report is reprinted with permission from ENTELEC News, October 2002. Copyright © 2002, ENTELEC, www.entelec.org

For further information about this article, please contactWayne V. Black at 202-434-4130 or by e-mail atblack@khlaw.com.