Economic/Legal Comments on Further Notice of Proposed Rulemaking for Unlicensed Access to TV White Spaces

BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION

In the Matter of Unlicensed Operation
in the TV Broadcast Bands, ET Docket No. 04-186

Additional Spectrum for Unlicensed Devices
Below 900 MHZ and in the 3 GHz Band, ET Docket No. 02-380

COMMENTS OF
NEW AMERICA FOUNDATION,
EDUCAUSE, FREE PRESS, CONSUMERS UNION, PUBLIC KNOWLEDGE
CONSUMER FEDERATION OF AMERICA, COMMON CAUSE,
WIRELESS INTERNET SERVICE PROVIDERS ASSOCIATION (WISPA),
CHAMPAIGN-URBANA COMMUNITY WIRELESS NETWORK,
CLOUD ALLIANCE, TRIBAL DIGITAL VILLAGE, MOUNTAIN AREA INFORMATION NETWORK,
CTCNET, NATIONAL HISPANIC MEDIA COALITION, U.S. PIRG,
CENTER FOR DIGITAL DEMOCRACY, KNOWBILITY,
NEWBURYOPEN.NET, NYCWIRELESS, ASSOCIATION FOR COMMUNITY NETWORKING,
ETHOS GROUP, ACORN ACTIVE MEDIA, FREENETWORKS.ORG,
UNITED CHURCH OF CHRIST, PROMETHEUS RADIO PROJECT

SUMMARY 

NAF, et al., applaud the Commission for definitively moving forward with a rulemaking designed to make productive use of extremely valuable, underutilized spectrum in the broadcast bands available.  However, commenters must express their concern and frustration that the Commission has chosen to reopen the question of whether to do so on a licensed or unlicensed basis.  The Commission’s determination in the first Notice of Proposed Rulemaking (2004 NPRM) to permit unlicensed use of the broadcast “white spaces” rested on a record built over two years which included a special Commission task force and a notice of inquiry.  See In re Spectrum for Unlicensed Devices Below 900 MHZ and in the 3 GHz Band, 17 FCC Rec 25632, 25634 (2002) (2002 NOI); Public Notice, Commission Seeks Public Comment On Spectrum Policy Task Force Report, 17 FCC Rec 24316 (2002).  Even so, knowing that others would oppose the possibility of unlicensed access, NAF and others extensively catalogued the benefits of unlicensed access in the broadcast white spaces. Comments of NAF, et al., at 1-4.

Nevertheless, the instant Further Notice reopens the debate on this critical issue de novo.  Worse, in recounting the perceived benefits and drawbacks, the Commission fails to consider the First Amendment and public policy framework provided by NAF, et al. in the previous proceeding.  As these factors weigh heavily in favor of unlicensed spectrum, and on their own would foreclose arguments other than those based on a significant risk of harmful interference, the Commission cannot refuse to address them in this stage of the proceeding.

Even without consideration of the First Amendment, however, the evidence clearly demonstrates the superiority of unlicensed access to the broadcast bands.  Whether it is the economic success of unlicensed access in such a “Swiss cheese” spectrum environment when contrasted with the continued failure of licensing in such environments (as demonstrated by the ongoing efforts to implement licensed services in the 900 MHz band and 700 MHz guard band), the lack of any “tragedy of the commons” in the intensively used existing bands, or the evidence that auctions for such limited spectrum licenses routinely fail to attract substantial bids, the evidence unequivocally supports unlicensed access for the white spaces.

With regard to the specific technologies, NAF, et al. again caution the Commission that it should not deviate from its traditional Part 15 approach.  Rather than bless a single technology such as sensing or “control signals” or “geolocation,” the Commission should instead state the necessary functionalities for devices.  This prevents the lock-in of technologies in an early stage of development, promotes innovation, and encourages “new and innovative uses of radio.”  47 U.S.C. §303(g).  Nevertheless, to complete the record, NAF, et al. provide information and concerns about possible barriers to entry with regard to the three specific approaches discussed in the First Report and Order and Further Notice of Proposed Rulemaking (2006 FNPRM).

The 2006 FNPRM also raises questions on whether to permit mobile uses, whether to permit operation on Channels 2-4, and whether to permit fixed (but not mobile) operation on Channels 14-20.[1] [ 2006 FNPRM at ¶¶56-57 In addressing all these decisions, the Commission should carefully weigh the benefit of permitting such services and use in such bands, subject to rigorous testing.  History has demonstrated time and again that prohibiting a particular use and requiring a full rulemaking to permit it at some future date when the technology has improved or the circumstances change is a death sentence to innovation and advancement of the technology in that space.  No one will invest the needed resources given the uncertainty of any future approval. 

Furthermore, the Commission must consider the importance of providing sufficient spectrum and sufficient uses to allow economies of scale.  Although a few innovators used the existing unlicensed bands for networking prior to 1999, it was only the adoption of the 802.11 “Wi-Fi” standards and the economies of scale achieved by putting Wi-Fi enabled chips in every new computer that brought the price down sufficiently to make broadband via unlicensed spectrum an affordable solution. As a result, millions of homes and businesses use wireless LANs, roughly 5,000 commercial wireless ISPs (WISPs) provide broadband services to hundreds of thousands of mostly rural consumers, volunteers have brought wireless connectivity to thousands in poor urban neighborhoods, and more than 200 city and countywide wireless broadband networks are already in operation for public access, or are in the RFP or deployment process as of this month (see Appendix B). 

This boom in business and citizen communication over unlicensed bands takes place despite the failure of the Commission to provide significant new spectrum for unlicensed use.  In fact, the Commission has reduced the availability of unlicensed spectrum available for public access today in the high-penetration frequencies below 3 GHz since this proceeding was initiated in 2002.[2]  Certainly, this lack of available spectrum has hampered the deployment of new, ubiquitous wireless services to all Americans.  Nevertheless, that use and demand for unlicensed spectrum continues to grow despite the artificial obstacles imposed by existing rules both demonstrates the power of innovation in the unlicensed bands and rebuts the continuous predictions of a commons “tragedy.”

This success story also provides an important lesson.  In setting the rules for unlicensed access in the white spaces, the Commission should take care to remember that one of the most attractive features of unlicensed access is its affordability and low barriers to entry.  The Commission’s rules should therefore reflect an interest in maintaining these attractive features.  The Commission should recall the valuable contributions of open source developers, community volunteers, and thousands of WISPs, who have brought broadband to millions of urban users, rural users, and small businesses that would not otherwise have access.  Only the low cost of equipment and low barriers to entry have made this quiet broadband revolution feasible.  When setting rules for unlicensed access to the white spaces, the potential “rocket fuel” for unlicensed wireless broadband in these underserved communities, the Commission must not impose rules that needlessly drive up cost or that allow incumbents to create barriers to entry.The Commission, in examining the technical submissions of commentors and in conducting its own tests, should likewise ensure that the process is transparent and open to all stakeholders.  The Commission should give little, if any, weight to engineering studies that do not include sufficient explanation to allow interested parties or the Commission itself to replicate the results.  To further assist the Commission, NAF, et al., provide suggestions and guidelines on how the Commission can conduct its own testing in a way that includes all potential stakeholders.  Such proceedings will have the salutary effect of eliminating future objections.

Finally, the Commission should resolve the question of use in the border areas by concluding that coordination is not necessary.  The purpose of the treaties mandating coordination is to prevent harmful interference in a neighboring country.  This is reflected in the difference between the area of mandatory coordination for UHF and VHF.  Here, the low-power signals will not penetrate any significant distance into either Mexico or Canada.