For more than two years, in three different proceedings and a host of Commission sponsored workshops, the Commission has received reams of evidence on the public interest value of permitting direct access to the public to broadcast band spectrum via the Part 15 rules. While incumbents have railed against the Commission, promising dire consequences for the future of free over-the-air television and for the digital transition, these claims lack merit. As far back as 1989, the Commission recognized that it could permit low power transmitters to operate in the broadcast bands. In re Revisions of Part 15, 4 FCCRcd 3493, 3501 (1989) (1989 Part 15 R&O). Notably, the Commission explicitly found:
We are satisfied that our proposed general emission limits are adequate to prevent harmful interference to TV receivers from Part 15 transmitters operating in the television broadcast bands. Of great concern, however, is the more intensive use of these bands that may occur with the introduction of various forms of High Definition Television (HDTV)....For this reason, at the present time, we are not allowing intentional radiators operated under the general limits to have their fundamental emissions located in the frequency bands allocated to television broadcast stations. Id. (Emphasis added)
Nothing has changed in the last fifteen years to contradict the conclusion that Part 15 devices can operate in the broadcast bands without causing harmful interference. To the contrary, technologies for interference avoidance have become increasingly powerful, sophisticated, and cheap to implement. Although broadcasters may argue that permitting operation of Part 15 devices in these bands will hinder the digital transition, these claims have no more validity than they did in 1989. Access to this spectrum for Part 15 devices promises to return so much to the public in the form of broadband access and advanced telecommunications services, that it would be irrational for the Commission to ignore its previous findings by continuing to deny public access to broadcast spectrum.
Too much caution. The FCC proceeds with an abundance of caution in the NPRM. Indeed, it proceeds too cautiously, proposing unwarranted strictures that inhibit the ability of parties such as Commentors to provide desperately needed broadband services to rural and poor urban communities. Notably, the total exclusion of operation in "occupied" bands, 14, the Commission's proposal for a professional installer certification for fixed nodes, 40, the requirement that mobile devices include identification beacons, 22, and an insistence on layering multiple mitigation strategies appear inconsistent in light of the Commission's previous findings that generic Part 15 protections would adequately protect viewers from interference.
The NPRM also proceeds too cautiously in its proposed methodology for protecting expanded rights of Low Power Television (LPTV) broadcasters and translators. The Commission offers no explanation for why it proposes complete exclusion to protect these services. When combined with the Commission's decision to award an additional companion channel for digital transition of LPTV and translators, see MB Docket No. 03-185, In re Amendment of Parts 73 and 74 of the Commission's Rules to Establish Rules Digital Low Power Television (rel. Sept. 30, 2004) ("Digital LPTV Order"), the proposed complete exclusion would effectively nullify any real possibility of Part 15 access to broadcast band spectrum and thus deny to all Americans the enormous benefits of unlicensed access in the broadcast bands.
NAF, et al. agree with the Commission's findings in 03-185 that LPTV provides much needed diversity in a media environment dominated by large group owners divorced from their local communities, and that LPTV and translators provide free over the air television in isolated areas. Id. at 1. But the Commission has created a false dichotomy between LPTV and Part 15 by proposing to treat these new channels as "occupied" and thus unusable. The Commission should reconsider this proposal and permit both the digital transition of LPTV and direct citizen access to the broadcast bands under Part 15.
No Windfalls to Broadcastersters. The Commission's most puzzling proposal, and perhaps most detrimental to the deployment of Part 15 devices in the broadcast bands, is the proposition that broadcasters could receive compensation for declaring white space "open." NPRM at 21. This proposal violates basic principles of the Communications Act and of the First Amendment. While it may make sense to allow broadcasters to operate "pilot beacons" that indicate the strength of their actual signal so as to avoid a "hidden node" problem, id. at n.34, this must be done, if done at all, at the broadcaster's expense.
Faulty premises. The Commission's over-cautious approach appears to proceed from several false premises. First, the Commission has unaccountably switched its focus from the receiving public to licensees. Traditionally, the Commission has focused on protecting the public -- the statutory beneficiary of the television licensing scheme by examining both the existing state of deployment and audience expectations.2 By contrast, the Commission here speaks not of protecting viewers or receivers, but of protecting licensees. See Appendix B Proposed Rule 15.244(g) (requiring intentional radiators to "protect TV stations from harmful interference").
While this may at first seem a matter of semantics, this confusion on the part of the Commission leads to a faulty public interest analysis. By placing the licensee at the center of the public interest analysis, the Commission has abandoned its traditional approach of balancing overall risk to the public with the potential public benefits. Cf. 1989 Part 15 R&O, 4 FCCRcd at 3519 (rules reflect "trade offs between beneficial low power spectrum use and possible interference to authorized radio services"). Instead, the Commission wrongly proposes to move forward only if proponents of direct citizen access can satisfy the nigh-impossible evidentiary burden that no possibility of interference exists under whatever worst case scenario incumbents can conceive.
Second, the Commission compounds this error by attempting to customize the rules for existing technologies. For example, in discussing the potential uses for unlicensed spectrum, the NPRM makes no mention of mesh networks, NPRM at 18, and the proposed rules reflect this lack of vision. In practice, mesh networks either as stand alone networks or in combination with "hub and spoke" networks are being deployed in ever greater numbers. What technological innovations will the Commission foreclose by crafting rules based on the state of technology in May 2004? Mitigation techniques and restrictions customized to today's uses vitiate the flexibility that has made the innovation under Part 15 possible.
Instead of requiring specific mitigation techniques and technologies, the Commission should describe what functionalities it will require from devices to avoid interference. Proper application of the Part 15 process will ensure that these devices create no harmful interference, but will retain flexibility and affordability.
Part I reviews the relevant statutory and constitutional factors the Commission must weigh in its public interest analysis. Implementation of the NPRM, as modified in the manner suggested in these comments, will broadly serve the goals of the Communications Act and the First Amendment. By contrast, failure to permit direct citizen access to spectrum where technology permits such access raises grave First Amendment concerns.
Part II addresses the questions raised in the NPRM regarding which services require protection through the blunt instrument of exclusion, and which do not. An analysis submitted as Appendix A demonstrates that, despite the overabundance of exclusions proposed in the NPRM, some space exists for unlicensed devices even in crowded urban markets. The Commission can better serve the public interest, however, by limiting exclusion from "occupied" channels only where necessary to protect health and safety or to protect full power stations and existing LPTV and translator services.
Commentors support the FCC's proposal regarding exclusion of Channel 37 to protect medical devices. While this complete exclusion is overly conservative, the potential harm to the public of even modest interference to life-saving medical equipment weighs heavily in favor of exclusion at this time. Similarly, the importance of public safety operations justifies exclusion of unlicensed operation in PLMRS and CMRS in those markets where channel 14-20 are used for these services. Commentors note, however, that these conclusions should be re-examined on a regular basis as the technologies mature. Indeed, in the future, public safety and medical telemetry services may find it advantageous to permit unlicensed operation in these channels when broadband networks in the broadcast bands are widely deployed.
Commentors, however, urge the Commission to reconsider the tentative decision to exclude operation on Channels 2-4. At the very least, the Commission should permit low power mobile devices to operate on these bands. These devices are the property of the same homeowner using consumer devices such as VCRs. Since the focus of this proceeding properly belongs on users, it follows that the Commission should allow users to decide whether they prefer low power mobile devices despite the possible risk of interference.
Commentors fully support the FCC's tentative conclusion that wireless microphones are unlikely to experience significant interference. To the extent the Commission considers further mitigation necessary, Commentors suggest that the Commission create an exemption to the Over The Air Receiver Device (OTARD) rule and permit owners of facilities where wireless microphones are used to prohibit operation of devices using broadcast band frequencies.
In Part III, Commentors urge the Commission to reconsider the NRPM's tentative decision to prohibit operation of Part 15 devices in bands occupied by expanded digital service of LPTV broadcasters and translators. The Commission should allow operation in these bands on a co-equal basis with the expanded LPTV and translator services. In the alternative, the Commission should permit operation of Part 15 devices in bands occupied by these new services subject to the standard limitations of Part 15 underlays, i.e., that the Part 15 device must accept any interference, and must not cause any interference.
In Part IV, Commentors discuss appropriate principles for mitigation of interference risk. Commentors address the flaws in the Commission's approach in the NPRM, and recommend a return to the Commission's traditional user-centric analysis. Commentors also urge the Commission to maintain the decentralization and flexibility that have made Part 15 so successful. In this framework, Commentors propose that a number of mitigation techniques address legitimate interference concerns. In particular, the Commission should be wary of proposals from incumbents designed to expand the rights of incumbents at the cost of the public.
