Recent Spectrum Developments

2012NSMA

Spectrum ManagementMay 15, 2012

Outline• Spectrum Policymakers• Middle Class Tax Relief and Job

Creation Act – Title VI (P.L. 112-96)• Other Spectrum Bands in Play• Additional Hot Topics

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Spectrum Policymakers

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The Washington, D.C. Landscape: Administration Policy Leaders

• NTIA– Lawrence Strickling

• RUS– Jonathan Adelstein

• White House– Todd Park– Tom Power

• State Department– Phil Verveer

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The Washington, D.C. Landscape: Congressional Policy Leaders

– Rep. Fred Upton, Chair, House Energy and Commerce Committee

– Rep. Greg Walden, Chair, House Communications and Technology Subcommittee

– Rep. Henry Waxman, Ranking Member, House Energy and Commerce

– Rep. Anna Eshoo, Ranking Member, House Communications and Technology Subcommittee

– Sen. Jay Rockefeller, Chair, Senate Commerce Committee

– Sen. Kay Bailey Hutchison, Ranking Member, Senate Commerce Committee

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** Elections in November could reshape Congressional leadership on technology policy **

The FCC

• Chairman– Julius Genachowski (D) (June 2013)

• Commissioners– Robert McDowell (R) (June 2014)– Mignon Clyburn (D) (June 2012)– Jessica Rosenworcel (D) (June 2015)– Ajit Pai (R) (June 2016)

• Commissioners are appointed by the President and confirmed by the Senate for 5-year terms 6

New FCC Commissioners

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Ajit PaiPreviously: •Partner at Jenner & Block •Special advisor to FCC General Counsel•FCC Deputy General Counsel•Chief Counsel to the Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Property Rights•Senior Counsel, Office of Legal Policy at the Department of Justice•Verizon Associate General Counsel

Jessica RosenworcelPreviously: •Senior Legal Counsel for Senate Commerce Committee•Senior Legal Advisor to Commissioner Copps•Competition and universal service advisor to Commissioner Copps•Legal Counsel to Chief of Wireline Competition Bureau •Attorney-Advisor, Common Carrier Bureau•Associate, Drinker Biddle & Reath

Spectrum Policymakers:FCC

• Rick Kaplan, Chief, Wireless Bureau • Mindel De La Torre, Chief, International

Bureau• Julius Knapp, Chief, Office of Engineering and

Technology• Austin Schlick, General Counsel• Ruth Milkman and Gary Epstein, co-leads of

Incentive Auction Task Force• David Furth, Acting Chief, Public Safety and

Homeland Security Bureau

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Middle Class Tax Relief and Job Creation Act – Title VI (P.L. 112-96)

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Middle Class Tax Relief and Job Creation Act of 2012, P.L. 112-96 – Title VI

• Spectrum Auctions– Required Spectrum Auctions– Incentive Auctions – Generally– Broadcast Incentive Auction

• Unlicensed Use – Guard Bands, 5 GHz• Spectrum Planning/Efficient Use• Federal Spectrum Relocation/Reimbursement• Wireless Facilities Deployment• 11 GHz, 18 GHz, and 23 GHz Microwave Bands• Public Safety

– D-Block Reallocation– T-Block

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P.L. 112-96: Required Spectrum Auctions

• Required Spectrum Auctions – by February 22, 2015– 15 MHz between 1675-1710 MHz – 1915-1920 MHz (unless harmful interference to PCS) – AWS-2– 1995-2000 MHz (unless harmful interference to PCS) – AWS-2– 2155-2180 MHz– 15 MHz contiguous spectrum to be identified by FCC

• Proceeds deposited into Spectrum Relocation Fund and Public Safety Trust Fund

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P.L. 112-96: Incentive Auctions• Broadcast Incentive Auction

– Eligible broadcasters: full power or low power Class A– Broadcast incentive auction: only one reverse auction and only one reorganization of TV

spectrum– FCC can conduct reverse/forward auction, reassignments/reallocations

contemporaneously– Participating broadcast TV licensees can relinquish: all rights to channel without receiving

any usage rights for another channel in return; all rights to UHF channel in return for rights to VHF channel; or usage rights in order to share TV channel with another licensee

– FCC must consider assigning licenses covering variety of geographic area sizes in forward auction

– Proceeds to TV Broadcaster Relocation Fund / Public Safety Trust Fund

• FCC may reassign TV channels as appropriate and reallocate portions of TV spectrum as agency determines are available for reallocation

• FCC must make all reasonable efforts to preserve coverage area of / population served by broadcast TV licensees

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P.L. 112-96: Reassignment/Reallocation: TV Broadcast Spectrum

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• FCC prohibited from involuntarily:– Modifying spectrum usage rights of a broadcast TV licensee or reassigning such a licensee– Reassigning broadcast TV licensee from VHF (54-216 MHz) to UHF channel (470-890 MHz)– Reassigning broadcast TV licensee from channel between 174-216 MHz to channel between 54-88

MHz• April 2012: FCC releases Channel Sharing Order

– Ground rules for stations choosing to share 6-MHz channel with one or more other stations– Identifies entities that may qualify to implement channel sharing arrangements– Channel-sharing licensees will retain rights to cable and satellite carriage based on the location of

the shared transmission

• FCC to reimburse costs reasonably incurred by:– TV licensees who are reassigned from a UHF channel to a new UHF channel, or from a VHF

channel to another VHF channel, or from VHF to UHF prior to completion of auction– MVPDs to continue carrying signal of TV licensee that is reassigned or if licensee voluntarily

relinquishes a UHF channel for a VHF channel or voluntarily relinquishes a channel to share with another licensee

P.L. 112-96: Unlicensed Use & Spectrum Planning / Efficiency

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• Unlicensed Use – Guard Bands– FCC allowed to use relinquished or other spectrum to implement band plans with

guard bands, and is allowed to permit the use of such guard bands for unlicensed use, provided

• That the guard bands are no larger than is technically reasonable to prevent harmful interference between licensed services outside the guard bands

– Unlicensed use must rely on database or other methodology determined by FCC– The FCC may not allow use of a guard band that it determines would cause

harmful interference to licensed services• Unlicensed Use – 5 GHz Band

– FCC to begin proceeding to modify Part 15 rules to permit unlicensed U-NII devices to operate in 5350-5470 MHz band, if licensed users protected by technical solutions

– Assistant Secretary to conduct study evaluating known and proposed spectrum-sharing technologies and the risk to Federal users if unlicensed U-NII devices were allowed to operate in the 5350-5470 MHz band and in the 5850-5925 MHz band

• Spectrum Inventory & Planning/Efficiency– Comptroller General receiver performance study– OMB to update and revise section 33.4 of OMB Circular A-11

P.L. 112-96: Federal Spectrum Relocation• Cost Reimbursement

• Federal entities incurring certain relocation or sharing costs shall receive reimbursement from Spectrum Relocation Fund

• Includes relocation or sharing costs related to pre-auction estimates or research• Includes modification/replacement of equipment, software, etc. • Includes costs of research, engineering studies, and economic analyses

• Higher priority for relocation over sharing• NTIA shall give priority to options involving reallocation; only choose shared use

when agency determines, in consultation with OMB, that relocation is not feasible because of technical or cost constraints

• NTIA Responsibilities• NTIA shall terminate entity’s authorization if entity has unreasonably

failed to comply with timeline for relocation or sharing• NTIA to create Technical Panel to review federal entity transition plans • Dispute resolution: If requested, NTIA must establish dispute resolution

board• Decisions appealable to D.C. Circuit

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Federal Spectrum Relocation, Continued• Congressional Action

– April 2012: Reps. Stearns and Matsui introduce H.R. 4817, The Efficient Use of Government Spectrum Act

• Gives the DoD and other federal agencies in the 1755-1780 MHz band five years to relocate off the band and provides adequate protections for reallocation

– April 2012: Reps. Walden and Eshoo launched bipartisan Federal Spectrum Working Group

• Group will examine how the federal government can use the nation’s airwaves more efficiently.

• NTIA report – March 2012– Announces possibility of repurposing 1755-1850 MHz band– Significant cost and time: $18 billion over 10 years

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P.L. 112-96: 11 GHz, 18 GHz, 23 GHz Microwave Bands

• FCC must submit a report to Congress on rejection rate for the following spectrum:

• 10,700-11,700 MHz• 17,700-19,700 MHz• 21,200-23,600 MHz

• Comptroller General Study• on whether this spectrum is being deployed in a way that

market forces provide adequate incentive for efficient use, and whether the FCC receives maximum revenue through competitive bidding

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P.L. 112-96: Public Safety Spectrum• To Public Safety

– D-Block Reallocation• To Commercial

– T-Band Reallocation and Auction • 470-512 MHz (TV Channels 14 to 20)• within 9 years

• Mixed Use– Narrowband and Guard Band Spectrum • 769-775 MHz, 799-805 MHz• FCC may allow to be used in flexible manner

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Public Safety: First Responder Network Authority

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• Independent authority (“FirstNet”) under NTIA will hold single public safety wireless license (700 MHz D-block)

• NTIA Role– The Authority shall: • develop RFPs, • consult with regional, State, tribal, and local jurisdictions,• enter into agreements to utilize existing commercial infrastructure, and• represent public safety before standard setting bodies

• FCC Role– The FCC:

• may adopt public safety roaming rules, • may allow priority access to commercial networks, and • must approve Technical Advisory Board for First Responder Interoperability

recommendations (by May 22, 2012)• NIST Role

– NIST to develop list of certified devices / components

Public Safety: Path to Network Buildout

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First Responder Network Authority

Develops RFPs for construction of network, including coverage areas, service levels, performance criteria, technical and operational requirements, terms of service, and practices and procedures of entities operating on network; provides notice of completion of RFP process/proposed plan for the State to the Governor of each State

FCC Technical Advisory Board for First Responder Interoperability

Sends minimum technical requirements to ensure nationwide interoperability to FCC

FCC

Approves, with revisions if necessary, and transmits recommendation to Authority

States can opt-in or opt-out of Authority’s proposed network deployment plan

Opt Out: If State opts out, State must submit alternative plan demonstrating interoperability; technical capabilities; and funding

OR

Opt In: State opts in

FCC can approve/disapprove State plan

Network built!

Public Safety: Funding• Public Safety Trust Fund:

• Deficit Reduction - $20.4B• Network Construction Fund - $7B• State and Local Implementation Fund - $135M• 911, E911, NG911 Implementation Grants - $115M• Public Safety Research - $100M• Additional Public Safety Research - $200M

• Authority can collect network user fees, and lease fees for network capacity and network equipment and infrastructure

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Other Spectrum Bands in Play

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National Broadband Plan (“NBP”)

• Spectrum for Broadband -- Goal: • 10 Years: 500 MHz for broadband • 5 Years: 300 MHz between 225 MHz

– 3.7 GHz

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NBP: Mobile Satellite Service (“MSS”)• NBP recommends FCC accelerate terrestrial

deployments in MSS spectrum.– Report and Order – April 2011– Public Notice on 2 GHz – May 20, 2011– DISH closes on DBSD/TerreStar transfers – 40 GHz of the 2 GHz

band – March 2, 2012• IB denies DISH waiver request

– FCC adopts NPRM/NOI proposing standalone terrestrial service in the MSS spectrum, so-called “AWS-4” rules

• Comments due May 17; reply comments due June 18• Proposed terrestrial service for the 2000-2020 MHz and 2180-2200 MHz

spectrum bands• Proposed pairing the AWS-4 blocks: 2000-2020 MHz as uplink; 2180-2200

MHz as downlink.• Proposed licensing the spectrum in paired 10 MHz blocks for each license

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NBP: Spectrum Flexibility• National Broadband Plan:

• Revise Parts 74, 78, 101 to allow for increased spectrum sharing among point to point microwave services

• Revise rules to allow for greater flexibility to deploy backhaul: NOI and NPRM adopted August 2010

• R&O, FNPRM, and MO&O adopted August 2011:• R&O permits FS operations in certain BAS and CARS frequencies; eliminates

final link rule; permits adaptive modulation; declines to permit auxiliary fixed stations

• FNPRM seeks comment on allowing smaller antennas in certain Part 101 antenna standards; allowing wide channels in 6 and 11 GHz bands; proposes exempting licenses in non-congested areas from efficiency standards; revising waiver standard for microwave stations near the geostationary arc 25

Additional Hot Topics

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Wireless in 2012 and Beyond: Transactions

• T-Mobile / AT&T – Implications • Verizon / SpectrumCo and Cox• DISH and 2 GHz MSS• LightSquared• The Next Thing?

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Wireless in 2012 and Beyond: Competition Policy and Spectrum Use

• Return of More Aggressive Market Regulation? • Staff report on AT&T/T-Mobile transaction

• Noted potential changes to screen in AT&T/Qualcomm draft order• Prompts letter from Reps. Upton/Walden – December 2011• But no change to screen in AT&T/Qualcomm approval

• Skyterra Order• Imposed new procedures on Verizon/AT&T in merger review context

• Continued concern re: state of competition • Receiver Performance

• March 2012 two-day FCC workshop28

Wireless in 2012: NTIA Spectrum Management Advisory Committee

• Rechartered and Selected New Co-Chairs in 2011: – Dr. Brian Fontes, CEO, NENA – Dr. Gregory Rosston, Stanford University

• 2011/12 Highlights– Four working groups created to address (i) the search for 500 MHz, (ii) spectrum

sharing, (iii) unlicensed use, and (iv) and spectrum management improvements. – The primary focus: the search for 500 MHz – particularly considerations

concerning the potential reallocation of the 1755-1850 MHz band.

• Next meeting: May 30, 2012– To consider processes and structure for making 1755-1850 MHz band available

for wireless broadband while maintaining essential federal capabilities

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Questions?Bryan Tramont

Managing PartnerWilkinson Barker Knauerbtramont@wbklaw.com

(202) 383-3331Wilkinson Barker Knauer, LLP2300 N Street NW, Suite 700

Washington, DC 20037www.wbklaw.com