Spectrum

Advances in wireless technology are radically transforming the rules governing the public airwaves. Television and radio broadcasters were once the masters of the key radio frequencies. But in the 109th Congress, Congress set a deadline for the transition to digital television, which frees up many of the choicest portions of the electromagnetic spectrum. This article focuses on key spectrum legislation from the 109th and 110th Congresses, as well as proposals before the Federal Communications Commission to build commercial and public safety wireless broadband networks to deliver voice, video and data services.

Introduction
Spectrum is popularly known as the airwaves. It refers to that portion of the electromagnetic spectrum relevant to communications. In the United States, spectrum use is regulated by the Federal Communications Commission. The entire range of the electromagnetic spectrum used for radio, television, cellular and wireless communications runs from 3 kilohertz (khz) to 300 Gigahertz (GHz). Most spectrum is regulated under federal licenses, with broadcasters still in control of some of the best frequencies. But the transition to digital television will bring significant changes, most notably the development of large-scale wireless broadband services. A slew of technological competitors – satellite, cable, and telecommunications providers – are all vying for a piece of the lucrative spectrum pie. In addition, wireless technology is beginning to utilize "white spaces," the empty channels on the broadcast spectrum, promising more efficient use of the public airwaves in the future.

In the 109th Congress, the most significant piece of spectrum legislation was the Digital Television Transition and Public Safety Act of 2005 (S.1932, Title 3 of the Deficit Reduction Act of 2005, sponsored by Sen. Judd Gregg, R-N.H.). The bill established Feb. 17, 2009, as the deadline for television broadcasters to vacate UHF channels 52 through 69 to make room for wireless broadband service. These channels occupy 108 MHz of spectrum, from 698 MHz to 806 MHz, known as the 700 MHz band. The spectrum is significant to wireless broadband because of its propagation characteristics: frequencies in this band can penetrate buildings and inclement weather.

Congress directed the FCC to set aside 24 MHz for public safety and auction the remaining spectrum to commercial providers. A total of 24 MHz was sold in a series of auctions beginning in 2000. The forthcoming auction of the 60 MHz block, which is required to take place no later than January 2008, is expected to be the last major spectrum auction in the foreseeable future. The Congressional Budget Office has estimated the auction will raise at least $10 billion for the U.S. Treasury. Other estimates put the figure as high as $28 billion. Prominent politicians including former Sen. John Edwards, D-N.C., Sen. John Kerry, D-Mass., and Sen. John McCain, R-Ariz., have all weighed in on the 700 MHz auction.

Spectrum auctions
Since 1994, the Federal Communications Commission has conducted auctions of licenses for radio spectrum. According to the agency, the auctions are conducted electronically and are accessible over the Internet. In 1993, Congress passed the Omnibus Budget Reconciliation Act (Govtrack), sponsored by Rep. Martin Sabo, D-Minn., which gave the commission authority to use competitive bidding to choose from among two or more applications for an initial license. Prior to this legislation, the commission relied largely upon comparative hearings and lotteries to select a single licensee from a pool of applicants -- a far less effective approach to distribute the hugely valuable spectrum frequencies. Since adopting auctions, the average time from initial application to license grant has dropped to less than one year, according to the FCC, and proceeds from the licensing sales benefit taxpayers by generating revenue for the U.S. Treasury. The sale of Advanced Wireless Services (AWS) licenses in September 2006, for example, raised $13.7 billion for the federal government.

In the Balanced Budget Act of 1997 (Govtrack), Congress expanded the FCC's auction authority to include discretion over competitive bidding exemptions, such as public safety services, digital television licenses to replace analog licenses, and non-commercial educational and public broadcast stations. The legislation was sponsored by former Rep. John Kasich,R-Ohio, now the host of "Inside the Heartland with John Kasich" on the Fox News Channel.

In 2004, President Bush signed the Commercial Spectrum Enhancement Act (Govtrack), sponsored by Rep. Fred Upton, R-Mich., which created the Spectrum Relocation Fund to provide a centralized and streamlined funding mechanism through which federal agencies can recover the costs associated with relocating their radio communication systems from certain spectrum bands that were authorized to be auctioned for commercial purposes. The legislation appropriated such sums as required for relocation costs, which are financed by auction proceeds.

Google has proposed that the FCC adopt a more efficient method to auction spectrum. The Mountain View, Calif.-based company argues that in some cases, the vast majority of spectrum is underutilized. The company wants the commission to adopt a "real-time airwaves auction model," in which a spectrum licensee could auction off excess spectrum on a wholesale basis. The idea came from the the company's online advertising auction in which companies bid on the placement of their ads on Google's search engine. A similar approach with spectrum would allow license holders to sell unused spectrum to smaller commercial operators who couldn't bid for the license themselves, allowing for the development of more innovative wireless broadband services.

The DTV Act
The Digital Television Transition and Public Safety Act (Govtrack) was the culmination of a multi-year effort to drive broadcasters from some of the choicest frequencies in the airwaves. As broadcasters were the first to make use of those frequencies, it became nearly impossible to dislodge them, even in the face of new technologies. In the Telecommunications Act of 1996 (Govtrack), sponsored by Sen. Larry Pressler, R-S.D., a major overhaul of telecommunications law governing long-distance and local telephone service, broadcasters also received a major concession. They were allowed the use of a second channel for digital television broadcasts, at no additional charge. There was also no fixed deadline for returning the frequencies.

To help bring about a digital TV transition, Congress and the FCC provided each broadcaster with a second six MHz spectrum license, effectively doubling their spectrum holdings. The idea was to allow broadcasters to offer analog and digital signals on two separate channels during a transition period and when enough consumers made the switch, broadcasters would return their analog channels and roll out enhanced programming such as HDTV or multicasting on the digital channels. Although the original version of the legislation called for broadcasters to return the second channel at year-end 2006, an amendment -- introduced at the last minute by Rep. W.J. "Billy" Tauzin, R-La. -- said that broadcasters need not return the frequencies until 85 percent of homes had digital sets. That meant that TV stations could continue to operate in both analog and digital frequencies. This loophole effectively undermined the transition deadline, which came and went without broadcasters relinquishing any of their analog channels.

The Digital Television Transition and Public Safety Act modified the flexible test and mandated a February 17, 2009, deadline for clearing the broadcasters out of channels 52-69. Full-power broadcast stations must cease broadcasting analog signals by that date. The bill was attached to an omnibus budget bill that President George W. Bush signed on February 8, 2006. The legislation also directed the FCC to auction the remaining commercial spectrum no later than Jan. 28, 2008, and to deposit the proceeds of the auction in the U.S. Treasury by June 30, 2008.

700 MHz
The United States is believed to be the first in the world to be clearing the 700 MHz band for wireless broadband. The radio waves travel twice as far as higher frequencies, which makes 700 MHz particularly suitable for wireless service and significantly reduces the capital cost of building out a network. Most other countries are focusing instead on 2.3, 2.5, and 3.5 GHz for Wi-Max. Although the U.S. market is large enough to provide economies of scale in device manufacturing, there is no readily available equipment, and operators in the band won't be able to enjoy global cost efficiencies, at least until other countries follow suit in transitioning the 700 MHz band from broadcast to broadband.

The digital TV transition will reclaim 108 MHz of spectrum, from 698 MHz through 806 MHz, known as the 700 MHz band. Of that spectrum, 24M MHz was sold in a series of auctions beginning in 2000, 24 MHz was allocated for public safety, and 60 MHz was authorized for commercial auction. The band is divided into an "upper" band, 746 MHz through 806 MHz, and a "lower" band, 698 MHz through 746 MHz. The public safety spectrum is divided into two 12-MHz blocks on the upper band.

In the 110th Congress, Sen. John McCain (R-Ariz.), a 2008 presidential contender on the GOP ticket, has reintroduced legislation, the SAVE LIVES ACT (Govtrack), to set aside 30 MHz of the 700 MHz spectrum to build a nationwide public safety broadband network, in addition to the 24 MHz already allocated for public safety agencies. In a June 2007 article, The Center for Public Integrity's "Well Connected" Project reported on a letter McCain sent to the FCC urging the commission to allocate more spectrum to public safety. Providing more spectrum to first responders was a key recommendation of the bipartisan 9-11 Commission, which investigated, among other issues, communication failures between first emergency responders during the Sept. 11, 2001, terrorist attacks.



Key Democrats, including another presidential hopeful, former Sen. John Edwards, D-N.C., and consumer advocacy groups have also weighed in on the 700 MHz debate, supporting an "open-access" platform that would allow a new broadband entrant or entrants to compete against the incumbent wireless providers. In a May 2007 statement from his campaign, Edwards called on the FCC to use a slice of the wireless broadband spectrum to make Internet accessibility more affordable to all Americans, regardless of geography or wealth. Specifically, he asked the commission to (1) set aside as much as half of the commercial spectrum for wholesalers who can lease access to smaller start-ups, which would improve service in rural and under-served areas; (2) require anyone who wins rights to the spectrum not to discriminate among data services and to allow any device to be attached to their service; and (3) make bidding anonymous to avoid collusion and retaliatory bids.

Similarly, a coalition of public interest and consumer groups and Web-dependent companies like Google and the Internet phone service provider Skype are lobbying the FCC to adopt open access and wholesale wireless rules based in part on the commission's landmark 1968 "Carterfone" decision, which allowed consumers to attach devices of their own choice to the telephone networks, paving the way for the development of devices like fax machines and telephony modems. Members of the Save Our Spectrum Coalition include Public Knowledge, Media Access Project, Consumers Union, Consumer Federation of America, New America Foundation and Free Press.

Incumbent carriers like Verizon and AT&T have publicly opposed such encumbrances, arguing in favor of an open market process that will bring in the highest number of bidders. But in an article published by The Center for Public Integrity's "Well Connected" Project, an AT&T executive indicated the phone giant was considering bidding for shared-use spectrum. The company later criticized the story, but didn't dispute the veracity of the quotation.

Potential bidders
The FCC is finalizing rules for the 700 MHz auction, which is expected to attract the interest of corporate players from variety of sectors, including telecommunications and wireless firms (Verizon, AT&T, Sprint-Nextel, Qwest, Deutsch Telekom, Alltel, United States Cellular, Leap), cable companies (Comcast, Time Warner, Cablevision, Charter Communications, Mediacomm Communications), satellite companies (Echostar Communications, DirecTV), equipment-makers (Alcatel-Lucent, Cisco, Texas Instruments, Motorola, Qualcomm), and technology companies (Google, Yahoo!, Amazon, and Microsoft). The auction could take place as early as fall 2007. The key question for investors and advocates is whether the 700 MHz auction attracts at least one major new entrant in either the video or wireless broadband space, or whether instead the telcommunications, wireless and cable incumbents increase their spectrum holdings and block out new competitors.

Notices of proposed rulemaking
The 700 MHz proceeding involves at least four related notices of proposed rulemaking by the FCC. A notice of proposed rulemaking, or NPRM, is an announcement published in the Federal Register of proposed new regulations or modifications to existing regulations; the first stage in the process of creating or modifying regulations. The FCC issues a notice to detail proposed changes to FCC rules or to seek public comment on a particular proposal or proposals. The document describes where and when comments may be submitted. The public may review the comments received and submit comments in reply to other parties' submissions.

The 700 MHz notices include: (WT Docket No. 06-150) Service Rules for the 698-746, 747-762 and 777-792 MHz Bands; (WT Docket No. 06-169) Former Nextel Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission's Rules; (PS Docket No. 06-229) Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz band; and (WT Docket No. 96-86) Former Nextel Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission's Rules.

Emergency communications
For years, first responders lobbied lawmakers for more spectrum to improve emergency radio communications. But they lost to a powerful broadcast lobby unwilling to relinquish their 700 MHz frequencies -- the spectrum equivalent of beachfront property. Finally, with the DTV Act, Congress carved out 24 MHz in the 700 MHz band specifically for public safety. The allotment will double the amount of spectrum available for first responders. The FCC has proposed using 12 MHz of that 24 MHz block to develop a national interoperable public safety wireless broadband network. Interoperability, or communications between two or more public safety agencies, remains a glaring deficiency is present day public safety communications. As evidenced by the terrorist attacks of Sept. 11, 2001, and Hurricane Katrina in October 2005, police, fire and emergency rescue officials often can't communicate with one another or state and federal agencies during critical emergencies in part because of incompatible emergency communications systems. The federal government assigns a radio license and piece of the spectrum to each of the 50,000 public safety agencies in the country. This allows local governments to select emergency communications systems that are best suited for their own needs, but often results in neighboring communities with incompatible systems.

Public safety proposals
In a December 2005 report to Congress submitted pursuant to the Intelligence Reform and Terrorism Prevention Act of 2004 (Govtrack), the FCC recognized that broadband applications offer the public safety community a number of benefits, including video surveillance, real-time text messaging and e-mail, high resolution digital images, and the ability to obtain location and status information of personnel and equipment in the field. The commission is considering whether to adopt rules permitting a single licensee to charge public safety entities for access to the broadband service. Critics have alleged it would monopolize public safety communications. Three private companies have formed, offering competing public safety broadband plans. Two of the proposals involve utilizing frequencies in the 700 MHz band.

Frontline wireless

 * Frontline Wireless, a startup led by former FCC Chairman Reed Hundt, has proposed building a public safety-commercial wireless broadband network in the 700 MHz band. The proposal calls for pairing at least 10 MHz of spectrum, known as the E Block, with 12 MHz of public safety spectrum in the upper 700 MHz band to create a nationwide interoperable public safety broadband network. Like commercial providers, public safety agencies would lease spectrum from the winning licensee, but would receive priority access to all 22 MHz during critical emergencies. The licensee would have to build out the network and operate the spectrum on a wholesale, open access basis. The idea is to open the frequencies to new and existing wireless providers -- not just incumbents like Verizon and AT&T, which have publicly opposed the proposal. Open access provisions would allow users to connect any compatible device to the fourth-generation (4G) wireless network, which is generally defined as delivering voice, video and multimedia anytime, anywhere and at greater speeds. According to the company, the proposal would require the E Block licensee to operate as a wholesale network provider: the licensee will build out the network, own and operate the towers and radios, provide transport to the backbone of the Internet, and then sell network capacity to customers on a wholesale basis, as well as to public safety users and critical infrastructure providers. In addition to Hundt, the Frontline team consists of a cadre of politically connected players, including Janice Obuchowski, who led the National Telecommunications and Information Administration under President George H.W. Bush; L. John Doerr, a veteran Silicon Valley venture capitalist with the investment firm Kleiner Perkins Caulfield & Byers; and Mark Fowler, who served as FCC chairman under the Reagan administration, among others.

Cyren Call

 * Cyren Call pioneered the idea of creating a public-private partnership to build out a nationwide interoperable public safety network. The proposal has received sustained support from the national fire, police and EMT associations. But the FCC rebuffed its proposal for Congress to reallocate 30 MHz of commercial spectrum to build the network (in addition to the 24 MHz already set aside for public safety). Unlike the Frontline proposal, the Cyren Call plan would place the spectrum under the ownership of a Public Safety Broadband Trust (PTSB), which would negotiate agreements for its shared use, giving priority to public safety agencies. The trust would grant long-term access to the spectrum to private businesses that would build and maintain the network. In exchange, the businesses would get the right to share the network and sell excess capacity for commercial purposes. Cyren Call, meanwhile, would operate the network. The company was founded by Morgan O'Brien, the co-founder of Nextel Communications. Sen. John McCain's spectrum bill closely resembles the ideas put forth by Cyren Call. "The federal government has made strides in developing a comprehensive, interoperable emergency communications plan, establishing equipment standards, funding the purchase of emergency and interoperable communications equipment, and belatedly making additional radio spectrum available," he said in a statement. "But none of this is enough. We must do more."

M2Z Networks

 * M2Z Networks has proposed offering free, "family-friendly," ad-supported broadband service to 95 percent of the U.S. population in an underutilized 20 MHz block of spectrum in the 2155 to 2175 MHz range. The company wants to skip the auction process altogether, and lease the spectrum from the government. The chairman and chief technology officer of the Silicon Valley company is Milo Medin, founder of the @Home Network, a high-speed Internet company that became Excite@Home and went bankrupt in 2001. He started the company with John Muleta, a former head of the wireless division at the FCC.

White spaces and "smart" radio
As part of the spectrum reallocation, the government is considering legislation to allow unlicensed wireless devices access to so-called "white spaces," or the empty channels on the airwaves resulting from unused broadcast spectrum. The FCC is developing rules to utilize the space with WiFi-style technologies capable of detecting and avoiding television signals in the vicinity. These devices would take advantage of "smart" or "cognitive" radio technology to enable wireless networks to share the white space spectrum.

Wireless Innovation Act
In January 2007, Sen. John Kerry, D-Mass., reintroduced the Wireless Innovation Act, (Govtrack) which would require the FCC to permit license-free use of the unassigned broadcast spectrum between 54 MHz and 698 MHz. The legislation is designed to enable entrepreneurs to provide affordable, competitive high-speed wireless broadband services in areas that otherwise have no broadband connectivity to the Internet. “Just as President Roosevelt recognized a responsibility to make electricity available to rural families in his New Deal, and just as President Eisenhower recognized the necessity of a National Highway System that would enable substantial economic growth in the country, it is time for us to make this technology available to the hard-to-reach communities that need it – rural and urban,” Kerry said in a statement. “At a time when the U.S. is lagging behind much of the world in broadband penetration – and more than 60% of the country does not subscribe to broadband service primarily because it is either unavailable or unaffordable – this legislation would put this country one step closer to achieving ubiquitous broadband Internet access throughout America.”



Larry Lessig's policy proposal
Larry Lessig, a law professor at Stanford University who writes about telecommunications issues, supports Sen. Kerry's proposal. While he believes in some government regulation of spectrum, Lessig argues that large amounts of the airwaves -- particularly white spaces -- should be made available to the public without a government-auctioned license. This, he argues, would allow for greater innovation of wireless devices. But, he acknowledges, Congress is unlikely to approve such policy given the influence of the broadcast industry in Washington, D.C. On deregulating spectrum: "Crude radio technology used to make regulating spectrum necessary. Smart radio technology makes it — in many cases at least — unnecessary. We should be pushing to deregulate where technology makes that possible."

Broadcasters' concerns
Broadcasters have asked the FCC to defer any decision on shared-use standards in the broadcast television spectrum until after the transition to digital television. The National Association of Broadcasters -- the lobbying arm of radio and television stations and broadcast networks across the country -- has argued that unlicensed white space devices could interfere with DTV service, leading consumers to question the reliability of the new technology. Such a perception would make consumers less likely to adopt the technology and ultimately slow the DTV transition. In addition, the NAB argues, the transition to "core" TV channels (2-51) will result in fewer available frequencies. "The environment in which unlicensed devices would operate would be crowded, shifting and uncertain, especially in metropolitan areas," the NAB said in a December 2004 statement on the topic.

Related SourceWatch resources

 * See the other articles at the Communications, Science and Intellectual Property Policy (U.S.) portal.

External resources

 * GovTrack.US
 * The Citizen’s Guide to the Airwaves
 * Inside the 700 MHz Spectrum Land Grab
 * The Federal Communications Commission's DTV Web site
 * The Federal Communication Commission's Spectrum Auctions Web site
 * The National Telecommunications and Information Administration's Office of Spectrum Management (OSM)
 * Frontline Wireless Homepage
 * Cyren Call Homepage
 * M2Z Networks Homepage
 * Sen. John Kerry's Web site
 * Sen. John McCain's Web site