WASHINGTON-The Federal Communications Commission’s recently adopted orders and a further notice of proposed rulemaking lay out new and prospective strictures regarding auctioning the “upper 10 megahertz block” of 800 megahertz specialized mobile radio spectrum along with the “lower 80” SMR and general category channels.
The upper block (200 paired channels at 816-821/861-866 MHz) and the lower 80 noncontiguous channels (in the 806-809.750/851-859.750 MHz band) will be the next battleground in the skirmish for expanded SMR spectrum.
While the orders establish ground rules for auctioning the upper block of 800 megahertz spectrum, the further NPRM delves into how the lower 80 channels and the general category channels-which have been redesignated for SMR use only-will be treated in the new era of geographic licensing. Most wide area licensees on these channels will be reclassified as commercial mobile radio services operators because of their likelihood of offering interconnection. Those who do not plan to offer CMRS can petition to be excluded from this classification.
Comments on the further NPRM, which spans 54 pages and 146 paragraphs, currently are due Jan. 15. Because of the complexity of the item-involving disaggregation of channel blocks and partitioning the 200 channels, cost-sharing for the mandatory relocation of incumbents, eligibility of Basic Exchange Telecommunications Radio Service operators for any of the channels plus definitions for “comparable facilities” and “good-faith negotiations”-that deadline probably will be extended.
The FCC’s First Report and Order established the mandatory relocation mechanisms, including good-faith negotiations. Perhaps the most contentious of the NPRM’s proposals is the issue of comparable facilities when incumbents in the upper 200 SMR channels must be relocated. Despite marathon negotiations between personal communications services operators and incumbent microwave users that occurred prior to the beginning of the PCS auction, there continues to be a murky area regarding what constitutes comparable facilities. Past commenters agree that there is a difference between “retuning” and “relocating,” making comparable facilities in SMR-speak a different animal than when it was considered during PCS discussions.
In the further NPRM, the FCC’s proposed definition of comparable facilities states that a relocated incumbent must “receive the same number of channels with the same bandwidth; have its entire system relocated, not just those frequencies desired by a particular [economic area] licensee; and, once relocated, have a 40 dBu service contour that encompasses all of the territory covered by the 40 dBu contour of its original system.” The commission also seeks comment on whether its definition “should include additional operational characteristics; if so, what characteristics should be specified?”
Analog incumbents wanting to use the “comparable facilities” definition to move up to digital could be disappointed. The FCC tentatively concluded that an economic area licensee would not be obligated to replace an incumbent’s existing analog equipment with digital gear “when there is an acceptable analog alternative that satisfies the comparable-facilities definition.” Instead, an incumbent looking to upgrade must bear those additional costs.
Incumbents operating in the lower 80 and general category channels could fare a bit better. The FCC tentatively concluded that there should be no mandatory relocation for those incumbents. Rather, the SMR licensees on these frequencies “will be allowed to operate under their existing site-specific authorizations, and geographic area licensees would be required to provide protection to all co-channel systems that are constructed and operating within their service areas.” Non-SMR licensees on these channels could be subject to relocation, however.
In addition, those incumbents will be able to have their licenses reissued if they are unsuccessful in bidding for geographic licenses that include their current operating area.
Even though Commissioner Andrew Barrett released a statement in favor of the further NPRM, saying that he will “welcome the opportunity to review the comments with regard to comparable facilities, which I believe will be critical to the proper relocation of the incumbents,” there are others who are less than thrilled with the FCC’s new licensing proposals.
“This is pretty much what we had expected, but it still was disappointing,” said Alan Tilles of Meyer, Faller, Weisman and Rosenberg, attorneys for the Personal Communications Industry Association. “The FCC still doesn’t understand that it has created a private auction for Nextel (Communications Inc.)” Tilles again called the FCC’s proposals on comparable facilities disappointing, adding that the FCC should have explained how its conclusions were reached. Tilles also predicted that the public safety and utilities segments of the industry will request a reconsideration of the further NPRM because of the redesignation of the general category channels.
Speaking for Idaho-based auction opponents SMR WON, Ray Kimball, an attorney with Ross & Hardies, said “comparable facilities will be unacceptable to many” along with the commission’s “reversal of its opinion on mandatory relocation and the elimination of finder’s preferences.”
