Public Safety Groups Hope New FCC Will Revise Disputed Rules for 4.9 GHz Band
APCO, the Public Safety Spectrum Alliance (PSSA) and the National Public Safety Telecommunications Council separately asked the FCC to change its September order (see 2009300050) revising how the 4.9 GHz band is allocated. Commissioners Jessica Rosenworcel and Geoffrey Starks dissented then. Industry experts said the FCC could back away from parts of the order in the new administration. Chairman Ajit Pai had some difficulty lining up votes before the meeting (see 2009240039).
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The new FCC could potentially follow Pai’s example from 2017, when the agency declined (see 1706130047) to defend parts of inmate calling service rules, approved under Democrats, when they were challenged in the U.S. Court of Appeals for the D.C. Circuit, officials said. The order cites arguments the 50 MHz swath of spectrum is underutilized and allows states to lease it to commercial entities. The FCC declined comment.
PSSA had asked the FCC to allocate the band to FirstNet (see 2009160067). “We’re hopeful that a new FCC will give this a serious look, and maybe even modestly optimistic,” Western Fire Chiefs Association CEO Jeff Johnson told us. He noted that as vice president, President-elect Joe Biden championed FirstNet and got the Obama administration to embrace it: “It’s not lost on [Biden] the success that FirstNet has achieved.”
Nobody wants to go back to the “fractured world” before FirstNet, Johnson said. “By issuing licenses to the states for 4.9, all you do is guarantee that there are 50 different ways of doing it and 50 different technologies,” he said: Not a single state filed in favor of their getting the band. “Why would we want to go backwards?” he asked. Johnson said no decision has been made whether to challenge the order in court.
“It’s likely that action on this will fall upon the next commission,” APCO Chief Counsel Jeff Cohen told us. “APCO will continue to press for rule changes benefiting public safety,” he said.
A longtime veteran of the FCC, NPSTC Chair Ralph Haller told us he learned “not to speculate too much” on how administration changes will play out. “I am hopeful that the commission will reverse its decision to give the spectrum to the state and implement something more like what NPSTC recommended,” he said. “What the commission did puts a tremendous burden on the states that are already underfunded and overworked. It also does not provide interference guidance for leasing near the state borders.” The NPSTC proposal “was done by consensus” of public safety and business licensees, he said.
“The states should be eager to embrace the opportunity to manage this critical spectrum for the benefit of its citizens through its use not only by mission-critical entities, but other parties that may also contribute to the economic well-being of the state,” said Enterprise Wireless Alliance President Mark Crosby. “It’s a once-in-a-lifetime opportunity at a time when state and local governments are facing significant tax revenue shortfalls,” he said: “That said, we understood all along that under a new administration, this decision might be revisited.”
The FCC’s order “introduces an ill-conceived approach to spectrum sharing that lacks a basis in the record,” APCO said in a filing posted Wednesday in docket 07-100. “The Commission’s radical shift to the 4.9 GHz rules ignores public safety’s needs and reasonable alternatives -- which, unlike the Order’s approach, were part of prior proposals on the record -- that would promote public safety and increase use of the band.” APCO called the order “arbitrary and capricious” and said it violates notice requirements in the Administrative Procedure Act.
“Instead of fixing the flaws in its rules that limited public safety utilization of the Band, the Commission seemingly used such under-utilization as an excuse to re-purpose the Band for commercial entities,” PSSA said. The rules will “most certainly result in a patchwork of different rules, different users, and different use cases, as well as put the integrity of public safety communications at risk.
“The Commission claims that its decision has not modified the rights of incumbent public safety licensees,” NPSTC said: The claim is “legalistic double-speak,” since the band is now frozen and “local public safety agency incumbents can no longer modify their respective licenses for additional sites or additional spectrum in the band. Further, an agency that did not hold a license but needs a new authorization can no longer apply and be granted a 4.9 GHz license.” The order allows states to lease out the spectrum, “including leases for commercial 5G broadband operations, with no protection or priority criteria specified for existing or expanded public safety operations,” NPSTC said.