FCC Democrats Likely to Push for Further Changes to Incentive Auction White Spaces Rules

White spaces advocates met Friday with Roger Sherman, chief of the Wireless Bureau, and Julius Knapp, chief of the Office of Engineering and Technology. One of the advocates’ takeaways from the meeting was that some issues will be teed up for additional comment, with decisions to be made later this year.

Unlicensed use is a politically sensitive topic with many high-technology companies fearing the rules don’t go far enough to give Wi-Fi a boost. Last week was to some extent the lull before the storm, with commissioners and key staffers away at NCTA’s Cable Show in Los Angeles, agency officials said. Discussions are expected to intensify this week as commissioners negotiate the three big items on the May agenda -- a net neutrality NPRM, service rules for the incentive and spectrum aggregation rules, which will be in effect for that auction -- agency officials said. The officials said they have lots of meetings set up for this week.

"It’s going to be difficult to accommodate any additional requests” from unlicensed spectrum advocates, said an agency official. “The wireless microphone people are unhappy as is.”

Michael Calabrese of the New America Foundation was hopeful his side was making progress. “They're working on it but it’s still too early to tell,” he said of FCC officials. “The Public Interest Spectrum Coalition remains hopeful that the commission will decide to follow congressional intent and dedicate the LTE guard bands for unlicensed devices,” Calabrese said. “Unlicensed microphones are not a problem. But allowing licensed microphones in the duplex gap would kill the emerging market for unlicensed broadband, since there would not be national markets without at least some access in cities like New York and L.A.” Licensed mics and unlicensed broadband “can coexist if the commission uses its authority to maintain one or both of the channels currently reserved for microphone use,” he said. “The statute not only permits this outcome, but we believe Congress expected a balanced policy that ensures a future for both wireless mics and unlicensed innovation."

Several questions remain, said Public Knowledge Senior Vice President Harold Feld. “How much certainty can the commission give to companies that there will be usable unlicensed spectrum in every market, based on the existing standard for using the TV white spaces?” Feld asked. “If companies need to go back and invent a whole new approach to be able to use the spectrum in the guard bands, than the companies that have invested millions in developing radios based on the existing industry standards are likely to give up and go home. At the same time, there is a realistic limit on just how much assurance staff can actually give, since no one knows how much spectrum will be recovered and how many broadcasters will need to be relocated. To make matters worse, staff want as much flexibility as possible to vary the size of the guard bands based on the actual auction outcome. Given that Congress imposed a lot of restrictions on how the FCC can repack broadcasters, staff want to retain as much flexibility as possible. But you can’t ask companies to stay in the game for two years twiddling their thumbs and keeping investment on hold until we see how the auction goes.”

Another question is how much of the future use of the TV white spaces (TVWS) can be deferred for later decision, Feld said. “In theory, you could tweak some of the TV white spaces rules -- especially now that the technology has improved since the rules were finalized in 2010 -- that could allow TVWS devices to do more with less,” he said. “On the one hand, it’s attractive to live and fight another day. On the other hand, it just adds to the uncertainty.” Feld called on NAB to work with unlicensed advocates on rules for wireless mics. “Given that the [spectrum] statute gives prominent mention to unlicensed in the TV white spaces, and doesn’t even mention wireless microphones, you would think the licensed wireless microphone community would be motivated to find allies,” he said. “Instead, they act like the world has not changed since 2008.”

"Wireless microphone advocates are more than willing to work with all stakeholders and have been doing so in the incentive auction proceeding,” responded NAB Executive Vice President Rick Kaplan. “However, one inescapable conclusion is that broadcasters need at least some small slice of 600 MHz spectrum to be able to cover breaking news around the country. Unlicensed advocates should be extremely happy with not only what the commission is doing at 5 GHz and 3.5 GHz but also in the 600 MHz proceeding.” The FCC is moving to open up spectrum in all three bands for unlicensed use.

Kaplan said the FCC will be limited on what it can do once the incentive auction rules are approved. “Once the band plan is set, any FNPRM doesn’t matter because if the commission establishes a duplex gap that’s between six and 11 MHz you can’t have unlicensed or wireless microphones, let alone both there,” he said. “Once it’s set, it doesn’t matter what small changes they make.”

The FCC should have “a game plan” for unlicensed spectrum analogous to the National Broadband Plan, said Commissioner Jessica Rosenworcel at a policy luncheon at the Cable Show Thursday. “The bulk of our efforts in Washington have focused on licensed spectrum,” she said. “What we need to do now is bring the same focus to unlicensed spectrum and Wi-Fi.” A “game plan” for unlicensed spectrum would focus on the problem by splitting it into high, mid and low bands, she said. In high-band unlicensed spectrum, Rosenworcel praised the cable industry’s efforts in the 5 GHz band, but said she thinks more can be done. In the middle band, the commission should make sure the 2.4 GHz band “stays secure” for Wi-Fi use, she said. In the low bands, she said the focus should be on the 600 MHz auction, and that the commission should make sure the guard bands “can be lawfully used for more Wi-Fi” and other unlicensed uses.

Commissioners Mike O'Rielly and Mignon Clyburn also expressed support for the creation of more unlicensed spectrum. “This is an area where I think all of us are enthusiastic,” said Commissioner Ajit Pai. A demonstration of 1.8 gigabyte throughput at the Cable Show highlighted the potential uses for more available spectrum, he said. “This makes it more incumbent on the FCC to make more unlicensed spectrum available.”