WASHINGTON-While the Federal Communications Commission has attempted to avoid getting drawn into skirmishes involving the relocation of 2 GHz microwave users by personal communications services operators, the agency will be forced to defend in court early next year a 1994 ruling that reversed a previous policy exempting state and local public-safety agencies from having to move off that band.
The Association of Public-Safety Communications Officials-International Inc., in its opening brief before the U.S. Court of Appeals for the D.C. Circuit, asserts the “radical departure from prior policy is not based on a reasoned analysis of the record.”
Oral argument is set for Feb. 2.
In crafting rules to move microwave users from the 2 GHz band to higher frequencies at the expense of PCS operators, the FCC in 1992 carved out an exception for public-safety communications providers.
Microwave facilities typically serve as the backbone for wide-area mobile radio systems used by police, fire and emergency medical personnel. The agency, which estimates about 6,000 microwave systems are licensed to 700 state and local governments throughout the country, reaffirmed the public-safety exception in 1993.
But in March 1994, the FCC abruptly changed course and decided public-safety licensees must move off the 2 GHz band.
The commission gave public-safety microwave users three-years to voluntarily negotiate relocation terms with PCS firms and a two-year mandatory negotiation deadline.
“The commission claims that public-safety incumbents must be subject to involuntary relocation to ensure that adequate radio spectrum will be available for personal communications services, even though the PCS industry itself had never sought such a result,” said APCO.
The trade group added, “The commission does not identify any new evidence in the record that can reasonably support its reversal of prior policy. Rather, without providing any new technical or economic analysis, the commission relies on the same record that it had presumably considered when it reached the opposite conclusion on three separate occasions.”
Nonpublic-safety microwave licensees on the 2 GHz band such as electric, gas and water utilities, railroads and oil and gas companies are subject to a two-year voluntary/one-year involuntary negotiating timetable.
Pocket telephone firms have alleged that microwave incumbents are demanding exorbitant prices for relocating them to comparable facilities, but recently have toned down the rhetoric insofar as characterizing the problem as more limited than previously thought.
But the PCS industry has got the attention of lawmakers, who have proposed to shorten the time frame for bargaining between carriers and microwave incumbents.
The APCO litigation comes at time when federal regulators are trying to improve strained relations with the public-safety community, which worsened early this year after the FCC failed to produce a comprehensive study of present and future public-safety communications needs of federal, state and local government agencies and a plan on how to meet those needs.
Congress called for the study in 1993 legislation that authorized the FCC to issue wireless licenses by auction in lieu of lotteries and comparative hearings. The fanfare surrounding the $8 billion raised largely from the sale of next-generation paging and pocket telephone licenses, and FCC Chairman Reed Hundt’s tight embrace of auctions as a licensing tool generally, has created the impression among public-safety officials and other private wireless sectors that spectrum policy is being driven by fiscal forces.
However, the FCC and the National Telecommunications and Information Administration recently established a public-safety wireless advisory committee to develop recommendations on operational, technical and spectrum requirements for federal, state and local public-safety agencies through 2010.
The panel is chaired by Washington, D.C., communications lawyer Philip Verveer.
