Friday, May 18, 2012

The Future of Part 22 T-Band Channels

The allocation of the 700 MHz D-Block to Public Safety Agencies has caused quite a stir since it was announced in February and recently signed into law.

We have produced an opinion for one of our clients which they have allowed me to share here.

An Opinion on the future of Part 22
Commercial Wireless Spectrum in the 470-512 MHz Band
(Commonly referred to as T-Band)

Introduction

Significant confusion exists relative to the future of all spectrum in the 470-512 MHz Band (commonly referred to as T-Band Spectrum) because of recent actions by Congress.  In the recently passed Middle Class Tax Relief and Job Creation Act of 2012 (the Act), Congress granted 10 MHz of spectrum at 700 MHz (referred to as the D-Block) to Public Safety Agencies nationwide to be used for a broadband network to provide a fully interoperable data and voice nationwide network using LTE technology for all public safety agencies.  The D-Block spectrum has a potential value of $20 billion + had it been auctioned to Commercial Wireless Carriers based on the bids received for the C-Block spectrum in the latest broadband auctions by the Commission in 2008. In addition to the $20 billion dollars worth of spectrum allocated to federal, state and local public safety agencies, Congress also allocated $7 billion in funds to be used for the construction of this new nationwide network.  As part of the requirement for the Congressional allocation of the spectrum and $7 billion in funds, Congress required that all Public Safety agencies currently operating in the 470-512 MHz band must “give back” all spectrum in use in this band.   The Congress has given Public Safety 11 years to clear this band.  The act apparently does not mention any Commercial Wireless Carriers (Part 22 of the rules). 

The implementation of the legislation is left to federal agencies with little or no direction from Congress.  On April 26, 2012 the Federal Communications Commission’s (the Commission) issued a Public Notice “announcing limited suspension of the acceptance and processing of certain applications for Part 22 and 90 services operating in the 470-512 MHz spectrum band (“T-Band”) in order to maintain a stable spectral landscape while the Commission determines how to implement recent spectrum legislation contained in the Middle Class Tax Relief and Job Creation Act of 2012 (“the Act”).  As described below, the suspension implemented by this Public Notice applies only to applications for new or expanded use of T-Band frequencies.”

Current Upheaval and Unknowns

The Act is clearly aimed at Public Safety licensees in the 470-512 MHz band operating under Part 90 of the rules.  While there are a limited number of Public Safety Agencies operating on 470-512 MHz frequencies under Part 22 of the FCC rules, these Agencies due so under rule waivers granted by the Commission.  Trade associations such as EWA, LMCC, UTC and others are filing petitions to obtain clarification as to the specific intent of the proposed rules and L&W believes this will eventually be sorted out but this is an election year and things always move at glacial speed through the halls of Washington and the Federal Bureaucracies.   It is L&W’s opinion that there will be no formal resolution emanating from the Commission until 2013.

However, as issued, the Commission’s “suspension” in the Notice of Proposed Rule Making (NPRM) clearly extends the freeze to non-public safety users utilizing Part 90 and commercial wireless carriers operating in Part 22.

What are the current realities for Part 22 T-Band licensees?

While Part 22 T-Band licensees are mentioned in the NPRM, this ruling has little or no affect on those licensees between now and 2023 or whenever the 700 MHz Public Safety LTE system is operational, whichever is longer. L&W does not envision this network being operational before 2028 if ever!

The reason this ruling has little or no effect on licensees operating under Part 22 is because the licenses are economic area-based with defined coverage contours.   Part 22 economic area licensees do not:

1.     require frequency coordination prior to making system changes;
2.     need to seek FCC permission to move sites or deploy frequencies.

Additionally, Part 22 economic area licensees have never been able to expand their coverage outside their economic area without a wavier. 


What is the likelihood that Part 22 & Part 90 T-Band users will be compensated for their relocation to “other spectrum” and when might this happen?

Significant precedent that exists at the Commission provides insight into how the Commission deals with involuntary relocation of existing licensees.  Typically the Commission will make spectrum available for existing licensees and will typically provide re-location financial assistance to the incumbents.  These precedents were set in the late 1990’s when the 2 GHz microwave band was re-allocated to allow the 1.8 GHz spectrum to be auctioned for Personal Communication Services (PCS).  Congress followed this precedent in providing 700 MHz spectrum and funding to Public Safety users who are being “relocated” out of the 470-512 MHz band. It is L&W’s opinion that for Part 22 licensees this precedent will be followed.

Go Forward Opinions for Users in Urban Markets needing 450 – 512 MHz Spectrum

If you are an existing Part 90 user operating in the T-Band, L&W’s first recommendation is not to panic.  The rules are clearly evolving; if you are currently licensed and do not need to make changes to your current system, you have at least 9 + years (and probably longer) before you have to be re-located.

However, if you are a new user requiring UHF (450 MHz to 512 MHz) spectrum for a new or expanded system then you have a major challenge if you are operating in an urban environment, particularly in any one of America’s top 10 cities, in the next five years.

In theory, additional spectrum will be freed up in 2013 as a result of narrow banding, but in practice, this will likely not be the case.   First, all indications are that many licensees are going to miss the January 1, 2013 deadline, adding significant confusion to the frequency approval and coordination process going forward.   Secondly, the FCC has already granted a number of waivers for users extending the narrow banding process well into 2013.  Finally, even when every user completes the narrow banding process, there are going to be significant challenges facing the coordinators and the Commission in dealing with some users who achieved narrow banding by implementing digital equivalent bandwidths by retaining their existing 25 KHz channels or who have chosen to go directly to 6.25 KHz equivalence through the implementation of Digital Mobile Radio (DMR) on a 12.5KHz channel.    L&W has yet to see a “narrow band” spectrum plan released by the Commission to provide coordinators and system planners, let alone regulators, with reasonable guidelines as to how to effectively manage a new spectrum landscape that is not yet stable.  L&W believes clients can expect an NPRM from the Commission in late 2012 or on January 3, 2013 announcing a freeze on new applications for channels until the landscape of spectrum below 512 MHz is sorted out after narrow banding.  Also, expect the Commission to grant additional narrow banding wavers as the January 1, 2013 narrowband deadline draws near.

The changing landscape of spectrum regulation and the spectrum shortage that exists in all major metropolitan areas leaves users with few if any options.  However this creates a unique opportunity for current Part 22 licensees in major urban areas who have spectrum capacity and are willing to sell or lease to industrial users.   L&W believes the risk associated with the Part 22 T-Band spectrum is minimal in the short-term and manageable in the long-term based on prior precedent established by the Commission to provide users who are required to re-locate with new “equivalent” spectrum. 

Consequently, L&W recommends to its clients seeking UHF spectrum in urban markets to seek out the local Part 22 licensee and work with them to solve their short-term and long-term spectrum needs