WASHINGTON-Whether spectrum used by the private wireless industry will be included in future auction plans remains a murky matter as the Federal Communications Commission gets ready to debate a proposed rule making concerning auctions.
The FCC is getting ready to implement the Balanced Budget Act of 1997. This law, more than a year old, expanded the FCC’s auction authority by saying the FCC will award licenses for mutually exclusive licenses by auction.
However, licenses “for public safety radio services, including private internal radio services used by state and local governments and non-government entities and including emergency road services provided by not-for-profit organizations that are used to protect the safety of life, health, or property and are not made commercially available to the public” will not be awarded by auctions.
The private wireless industry and the trade association that represents it, the Industrial Telecommunications Association, believe private wireless spectrum falls under the exception clause.
Nevertheless, there is a general feeling in the private wireless community the FCC’s Wireless Telecommunications Bureau is set on auctioning private wireless spectrum.
Deputy Bureau Chief Rosalind Allen disputed this. “We don’t have a specific plan. Congress in [the Balanced Budget Act of 1997] changed the [FCC’s] auction authority. The legislative history is pretty clear that it expanded our authority.”
ITA President Mark Crosby noted ITA’s educational lobbying efforts have been directed more toward Congress rather than the FCC. “The [FCC] is responding to what Congress wrote in [the BBA]. The language does not have enough clarity. Without that clarity the FCC is inclined to take a very, very liberal view when it comes to private wireless,” Crosby said.
Crosby was quick to add, however, there is always an effort to educate the FCC commissioners on what private wireless is, what its mission is, and how it is used by the non-communications-focused industry. “The commissioners don’t know who we are,” he said.
Clues from the commission
The fruits of this effort will become more apparent when the NPRM is circulated among the FCC commissioners. None of the commissioners have made public statements regarding the possible auctioning of private wireless spectrum, but there are clues.
FCC Commissioner Gloria Tristani, in a recent interview with RCR, said her first experience with private wireless spectrum usage was when she was in private law practice. “The law firm I was with represented the big power company. That is the first time I remember hearing about microwave radio and all of these things, and it was their communications. They were very, very vital to the functioning of the power company,” Tristani said.
On the other end of the spectrum appears to be FCC Commissioner Michael Powell. Powell “has always favored auctions as a way to assign licenses. I don’t think he has made the distinction between commercial and private,” said Peter A. Tenhula, Powell’s wireless legal adviser.
FCC Commissioner Susan Ness has been known to be considering lease fees as a way of paying for the spectrum but not require non-communications-focused industries to participate in auctions. ITA has been advocating lease fees for quite some time, last year trying to get legislation specifically calling for them. Indeed, Crosby said the government could make as much money with lease fees as the continuing auction of 220 MHz licenses appears to be making. “Give me lease fees, I think I could make at least [that much] and use the spectrum more efficiently,” he said.
Legal advisers for FCC Chairman William Kennard and Harold Furchtgott-Roth expect the private wireless industry to loudly express its views once an NPRM is released. “I would like to think we understand their concerns, but we would expect them to come in and tell us their views on the specifics once there is an item,” said Paul E. Misener, senior legal adviser and chief of staff to Furchtgott-Roth.
“We will have a rule making and have the opportunity to hear from all of the effected sectors, taking those views into consideration. The item will be nothing more than an NPRM. My sense is that there are a lot of issues where we need help from effected sectors,” said Kennard’s wireless legal adviser, Ari Fitzgerald.
