OTI-WIFU Reply Comments Defending "Use It or Share It" Rules For TV White Spaces

The Open Technology Institute at New America and Public Knowledge submitted reply comments to the Federal Communications Commission (FCC) on Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions (GN Docket No. 12-268)

CLICK HERE to download a copy of the full comments as a PDF

The Open Technology Institute at New America (“OTI”) and Public Knowledge (“PK”) hereby reply to certain of the comments filed in response to the Commission’s Public Notice on how it should define the term “commence operations” during the transition of the 600 MHz band from broadcast television and secondary and unlicensed uses, including television white space (“TVWS”) devices, to licensed wireless communications use.

OTI and PK strongly supported the Commission’s decision in last year’s Incentive Auction Report & Order to permit white space devices (WSDs) to continue operating in the 600 MHz band post-auction until such time as the licensee gives notice that it will “commence operations” in that local area. As the Commission recognized, due to the repurposing of broadcast spectrum for auction and the repacking of broadcast licensees, there will be precious little spectrum left to nurture a national market for low-band unlicensed devices and services – particularly connectivity for personal/portable devices (e.g., the 802.11af standard) that require a minimum of 18 to 24 MHz in every market nationwide. Ongoing, temporary access to unused 600 MHz spectrum on a localized basis is not only the most efficient spectrum policy – and does no harm to licensees, thanks to the TV Bands Database system – but it also may prove essential to the viability of unlicensed operations.

In the past, auction delays and 10-year buildout requirements based on population, however meritorious or unavoidable, have proven to be a recipe for leaving spectrum capacity fallow for extended periods – and particularly so in rural and other underserved areas. In this proceeding, however, the Commission correctly acknowledged there is a governance mechanism in place to ensure that unused spectrum “white space” in the 600 MHz band remains available for use – or withdrawn from use – depending on the actual operations of the primary licensee. The TV Bands Databases certified by the Commission are designed precisely to govern opportunistic access by unlicensed devices that must renew permission each 24-hour period to continue using a particular channel – a permission that the TV Bands Database can withhold when a primary licensee is ready to commence service.

The Commission’s decision to permit continued, temporary use of unused 600 MHz spectrum post-auction is the closest thing imaginable to a spectrum efficiency “free lunch.” Thanks to the automated enforcement mechanism of the TV Bands Database, there is absolutely no downside or risk for licensees. The new 600 MHz band license holders would maintain all of their rights to use the public resource – they would only lose the option to warehouse it. The reporting “burden” on licensed carriers is also minimal considering that carriers will necessarily have the required information readily at hand as part of their process of preparing link budgets, deploying base stations, and preparing for site activation and commissioning tests prior to commencing commercial service.

It is also important to recognize that the Commission’s proposal simply maintains the status quo. Today the majority of 600 MHz spectrum is not used by broadcast licensees and is available for unlicensed use. Opportunistic, unlicensed access to fallow 600 MHz spectrum is the default. Post-auction, during and after the shut down or relocation of broadcast stations, the TV Bands Databases will continue to protect licensed operations from interference on an automated day-to-day basis. Consumers will typically not even be aware that frequency blocks are subtracted from the list of available channels, depending on the status of the primary licensee, any more than they would be aware of the automated updating of available channels if their device moves from one media market to another.

OTI and PK commend the Commission for proposing a definition of “commencement of operations” that strikes an appropriate balance between authorizing the productive use of otherwise fallow spectrum capacity and ensuring that the TV Bands Database system will prohibit unlicensed operations at the time the licensee “begins site activation and commissioning tests, using permanent base station equipment and permanent antenna or tower locations.” There is strong support in the record for the Commission’s proposal, which will ensure that spectrum that might otherwise sit idle can be used at least temporarily for rural broadband and other productive purposes. The proposed approach also provides an additional incentive for wireless licensees to deploy more rapidly on their newly acquired spectrum.

Contrary to the claims of certain mobile carrier interests, the “burden” on licensees (to notify one of the TV Bands Database administrators) would be de minimus and not involve collecting any data the operator does not already have readily at hand for their own purposes. Both the timing and the form of the notification described in the Commission’s proposal minimizes the burden on licensees. With clear ground rules and the TV Bands Database as an automatic enforcement mechanism, the operations of licensed carriers would not be impacted in the slightest.

There is strong support for the Commission’s proposal in the Public Notice that a licensee’s notification that it will commence operations would only “cover the area served by the licensee’s commercial service infrastructure deployment.” Partial Economic Areas (PEAs) can be larger than entire states and include multiple cities, as well as regions separated by mountains or large bodies of water. Given the capability of the TV Bands Database system to enforce exclusion zones in discrete geographic areas, there is no strong reason to use PEAs as the geographic foundation for excluding WSDs from access to underutilized spectrum.Finally, contrary to the claims of mobile carrier interests, nothing in the 2012 statute authorizing the incentive auction prohibits underlays or continued unlicensed access to the unused 600 MHz spectrum in a manner that does not cause harmful interference to licensees. There is, however, language expressly stating that the Spectrum Act in no way diminishes the FCC’s pre-existing authority. The Spectrum Act confirms that nothing in Section 6404 “affects any authority the Commission has to adopt and enforce rules of general applicability . . . .”

CLICK HERE to download a copy of the full comments as a PDF