Background:

Use of spectrum above 95 GHz is largely uncharted territory. Apart from several minor authorizations for amateur radio and industrial, scientific, and medical (“ISM”) operations under Part 18, all non-Federal operations in these frequency ranges have only been permitted by the FCC via experimental licenses. Various parts of this extremely broad range of bands are used by radio astronomy and other passive services.

The Commission has used its Spectrum Frontiers proceeding to gauge interest in spectrum above 95 GHz. While several parties filed comments in that proceeding touting a range of both communications and non-communications applications services (including spectroscopy, imaging, and sensing), the Commission took no meaningful steps toward making the band more available. The Draft NPRM would seek comment on (I) possible licensed operations in various frequency ranges; (II) making particular frequency bands available for unlicensed use; and (III) creating a new framework for experimental licenses for spectrum above 95 GHz.

I. Licensed Allocations

The Draft NPRM would propose that rules in these bands may be based on the light-licensing fixed point-to-point rules that currently apply to the 70/80/90 GHz bands which provide for:

• Non-exclusive nationwide licenses in any portion of the bands in question with 10-year terms
• Registration of links through a system maintained by a database manager
• A twelve-month construction requirement (after registration)
• Interference protection based on registration priority

As written, the Draft NPRM requests feedback on whether to permit fixed point-to-multipoint systems in addition to fixed point-to-point links in these bands, and on whether there is any interest in deploying mobile services in spectrum above 95 GHz.

Noting that almost all of the bands in the 95-275 GHz range that would be under consideration are shared bands, the Draft NPRM devotes considerable space to raising issues regarding shared operation of licensed fixed links with other allocated uses, as applicable, including not only FSS and MSS, but radio astronomy, Earth Exploration Satellite Service (“EESS”), the Space Research Service (“SRS”), the Inter-Satellite Service (“ISS”), radiolocation, and radionavigation, as well as sharing between Federal and non-Federal users.

II. Unlicensed Operations

This anticipated proposal comes in the wake of the Commission declining in the November 2017 Spectrum Frontiers orders that, in general, turned a deaf ear to please by Microsoft and others to increase unlicensed opportunities in the range between 24 and 86 GHz. In contrast with that action, the Draft NPRM states that “[p]otential future [unlicensed] applications in these bands [might]include ultra-high definition video, and high-speed data transmission, such as temporary fiber optic line replacement, chip-to-chip communication within computer equipment, and replacement of computer data cables in data centers with wireless links.”

Further, given that these frequencies enable certain non-communications applications of potential interest to industry and research, such as emerging terahertz spectroscopy applications, the Draft NPRM includes queries whether unlicensed operations more properly fall within the Part 18 ISM rules, and what changes in that rule part may be appropriate to accommodate these uses.

III. Experimental Licenses

• Greater Marketing Flexibility by allowing direct sales of experimental equipment used in market trials to trial participants (whereas existing ERS rules only allow limited equipment sales to other ERS licensees during market trials).
• Broader Geographic Scope by giving experimental licensees “substantial flexibility to conduct ... experiments over a wide geographic area ... and adapt their program of experimentation as needed.”
• Longer License Terms namely ten-year term instead of the two- and five-year terms currently available for other ERS licenses.

The FCC is tentatively scheduled to vote on the draft item during the Open Commission Meeting scheduled for February 22. Assuming the item is approved, the Draft NPRM suggests that comments will be due 30 days (and reply comments 45 days) after the date of publication in the Federal Register. The mere issuance of the Draft NPRM is welcome news for a number of equipment and service developers who have been pushing for greater access to these frequency ranges and, if the Commission’s expectations reflected in the draft item are fulfilled, may give others reason to pursue plans that have not been fully ignited because of the lack of formal encouragement to develop a regulatory framework, and greater certainty, in these bands.

The publication firms up the dates for the one-year transition period regarding the continued availability of the current Commission equipment authorization procedures prior to marketing or operation -- verification and Declaration of Conformity ("DoC") -- while the new Supplier's Declaration of Conformity ("SDoC") is also available for use for equipment that qualified under one or both of the two pre-existing processes. During the transition, for affected unlicensed unintentional radiators, one of these processes (or certification as an alternative in some cases) must be followed, as applicable per Section 15.101 of the FCC's rules prior to the new changes (for verification or DoC) or as revised (for SDoC). Note that there were no changes in the recent order to the categories of unintentional radiators that, as an alternative in some instances, also allow use of the certification procedures (which unlike the other processes we've mentioned require application and approval by Telecommunications Certification Bodies).

Through November 2, 2018, unlicensed devices that could have qualified for and have been subject to either the verification or DoC process under the rules in effect prior to November 2, 2017, can continue to use those processes. However, such devices may now go through the new SDoC as an alternative option.

However, responsible parties are well abused to take heed that, for any equipment that was first qualified through the verification or DoC process at any time, if there are changes after November 2, 2018, that would require the modified equipment to undergo a separate authorization process before it can be marketed and operated, those modified devices must go through the SDoC procedure (or certification if available) to cover the changes.

After November 2, 2018, all new models of unintentional radiators (unless there is an exception to the equipment authorization procedures) must go through either the SDoC "self-approval" procedure or, if applicable per Section 15.101, the certification approval process. On and after November 3, 2018, the verification and DoC procedures will no longer be available for any device types. But responsible parties, distributors, and retailers can be assured that equipment authorized under either one of those two procedures being phased out may continue to be marketed and operated indefinitely provided there are no changes requiring a new authorization.

Federal law prohibits the operation of a radio broadcast station above certain power levels without an FCC license. Since arriving at the FCC, Commissioner O’Rielly has been a frequent critic of pirate broadcasters, arguing these unauthorized operations steal listeners from licensed stations, cause harmful interference to licensed stations, and do not provide critical emergency alerts, weather updates, and news offered by licensed stations. Despite these harms, the Commissioner claimed the FCC has done little to combat unauthorized stations, particularly in pirate “hotbeds” of New York City, Boston, and Miami. As a result, Commissioner O’Rielly has supported multiple anti-pirate proposals during his FCC tenure, from empowering licensed broadcasters to bring private lawsuits against unauthorized stations to ensuring the Enforcement Bureau remains committed to pirate enforcement following the closure of FCC field offices. The Commissioner’s recent statement recommended beefing up pirate enforcement in five areas:

1. Increased Penalties – While the FCC occasionally issues large penalties against particularly egregious, long-running unauthorized broadcasters, such actions are rare with pirate operators generally receiving non-monetary warnings or fines below the $25,000 delegated authority limit for Enforcement Bureau actions in this area. Commissioner O’Rielly recommended that the fines against pirates should instead mirror the significant penalties proposed for other violations impacting public safety and consumer protection, which can range from millions to hundreds of millions in fines.
2. Third-Party Aiding & Abetting Liability – The FCC issued an Enforcement Advisory last year with Commissioner O’Rielly’s support warning that third parties aiding pirate operations may be subject to enforcement action. But FCC pirate radio investigations continue to target the actual station operators instead of those “aiding and abetting” such violators. In his statement before the House Subcommittee, the Commissioner reiterated his recommendation to take enforcement action against landlords, building owners, building supervisors, and advertisers that “knowingly and intentionally assist” pirates to cut off outside support for unauthorized stations.
3. Equipment Confiscation – Federal law allows FCC agents to confiscate pirate broadcaster equipment, but only after receiving the approval of the Department of Justice and overcoming certain procedural hurdles. As a result, FCC agents often leave pirate equipment in place after conducting investigations, allowing unauthorized stations to quickly return to the air. The Commissioner recommended the FCC adopt an expedited process to confiscate pirate equipment, particularly when such equipment is located in common areas like elevator shafts and rooftops not owned or controlled by pirate operators.
4. Follow-Up Enforcement – As a corollary to equipment confiscation, the Commissioner recommended that FCC agents conduct follow-up sweeps of known pirate hotspots to ensure that unauthorized stations do not return to the air after investigations. Although he did not offer a specific timetable, the Commissioner indicated in his statement that such sweeps should occur at least annually.
5. Eliminating Warnings – Federal law allows the FCC to impose fines on pirate broadcasters without first issuing a warning or other notice. However, Commissioner O’Rielly stated that FCC agents often leave warning after warning informing the same individuals to stop unauthorized broadcasts to no avail. The Commissioner indicated that this process undermines FCC authority and recommended that it suspend any further warnings to pirates and move to propose fines against unauthorized broadcasters as soon as they are discovered.

The Commission granted the petitions of wireless microphone manufacturers to relax the limit on spurious emissions. The FCC concluded that its prior specification in the Wireless Microphones Order of a -90 dBc limit at all frequencies more than one megahertz above and below the carrier frequency is not necessary to protect radio services in shared or adjacent bands. In its place, the Commission adopted the European Telecommunications Standards Institute (“ETSI”) spurious emission limits for licensed and unlicensed wireless microphones, such that emissions more than one megahertz above and below a wireless microphone carrier frequency must comply with the limits in Section 8.4 of ETSI EN 300 422-1.

With respect to output power measurement applicable to both licensed and unlicensed wireless microphone operations in the VHF TV bands, the Commission clarified that manufacturers may show compliance with the 50 mW equivalent isotropically radiated power (“EIRP”) limit for licensed wireless microphones operating in the VHF band by making either radiated or conducted measurements.

The Commission denied the requests of manufacturers to increase the EIRP limit of wireless microphones (20 mW) that operate in the 600 MHz guard band and duplex gap. The agency found the proponents of change had not adequately substantiated their request, observing that “[n]o party provided an analysis demonstrating that the maximum power could be increased without causing harmful interference to licensed wireless services.”

However, in a long sought victory for manufacturers, the FCC also decided on reconsideration to exempt unlicensed wireless microphone operations in the TV bands from antenna connector restrictions. Specifically, the Commission waived a requirement in Section 15.203 of its rules that unlicensed wireless microphones utilize either a permanently attached antenna or an antenna that is uniquely coupled to the device. The Commission’s rationale for doing so reflected both the fact that some microphones require detachable antennas in order to function effectively, and its assessment that the other unique connector requirement would not be necessary to prevent harmful interference to authorized services. This result is limited to unlicensed wireless microphones and does not extend to other Part 15 devices which are not already exempt from the still generally applicable integrated or unique antenna requirement.

For operations of legacy wireless microphone equipment, the Commission clarified that unlicensed users can continue to operate equipment that had been certified under Part 74 in portions of the 600 MHz service band until the end of the 39-month post auction transition period. After that time, however, unlicensed wireless microphone users are only authorized to operate wireless microphone equipment that has been certified under the Part 15 rules. The Commission will also allow operation of legacy wireless microphone equipment that was originally certified under Part 74, but can be modified and certified to operate in portions of the 600 MHz service band under the new Part 15 rules, to do so.

The Commission declined to adopt Shure’s proposal to allow unlicensed wireless microphone users to register for protection from other unlicensed operations in the TV bands on the grounds that doing so would be inconsistent with their fundamental status as unlicensed services. Instead, the Commission sought to accommodate mid-sized professional theater, music, performing arts, or similar organizations by issuing a further notice on creating a regime for such parties to attain licenses for their wireless microphone operations, as discussed below.

In the 169-172 MHz band, the Commission revised the center frequencies for two of the 200-kilohertz wireless microphone channels, shifting the authorization to operate on channels centered at 169.475 and 170.275 MHz to 169.575 MHz and 170.025 MHz. They also permitted 54-kilohertz operations on four new channels that would correspond with these 200-kilohertz channels, specifically authorizing such wireless microphone operations on frequencies centered at 169.545 MHz, 169.605 MHz, 169.995 MHz, and 170.055 MHz.

In the 1435-1525 MHz AMT band, the Commission, denying several petitions for reconsideration on the issue by manufacturers, affirmed a decision establishing a 30 MHz limit on the amount of spectrum available for wireless microphone operations at a particular location and clarified how that limit would work with multiple wireless microphone users in the same geographic area. Specifically, the FCC clarified that that the 30-megahertz limit applies to each licensed wireless microphone user seeking access to spectrum in the 1435-1525 MHz band for its own wireless microphone operations at a particular location or venue. Licensed wireless microphone users seeking access first need to coordinate with the Aerospace and Flight Test Radio Coordinating Council (“AFTRCC”), which must determine whether to permit access to the 1435-1525 MHz band in that area during the specified period and to indicate whether any specific frequencies in the 90 megahertz of spectrum of the band is unavailable for use. The Commission also clarified that, in extraordinary circumstances in which a wireless microphone user demonstrates that access to more than 30 megahertz for “a specified event” is merited, an STA process will be available which requires prior coordination with AFTRCC. For example, the Commission suggested that isolated, “super-scale” professional entertainment productions, such as a seasonal holiday production at Radio City Music Hall, may qualify for an STA.

The Commission also sought to facilitate coordination between wireless microphone operations and incumbent primary Federal fixed services in the 941.5-944 MHz band. Ultimately, the FCC decided that, after coordination of proposed wireless microphone operations with incumbent non-Federal users through the local SBE coordinator, a license applicant is to file its application for an LPAS license with the Commission. In addition to basic technical information, the applicant must provide a description of the proposed location and area (or areas) of operation.

In the companion Further Notice of Proposed Rulemaking (“FNPRM”), the Commission proposed to permit certain professional theater, music, performing arts, or similar organizations that operate unlicensed wireless microphones to obtain Part 74 licenses to operate in the TV bands, thereby gaining the ability to register in the white spaces database and gain protection from unlicensed white space devices at the same venues. The Commission proposes a 50 microphone license eligibility threshold for such entities, but seeks comment on whether the threshold should be even smaller. The FNPRM seeks comment on whether such users should also be able to obtain a Part 74 licenses to operate in other bands available for use by Part 74 wireless microphone licensees, provided that they meet all applicable requirements in the respective bands. Specifically, the Commission seeks comment on allowing professional theater, music, and performing arts organizations under the proposed definitions access to portions of the 900 MHz band, the 1435-1525 MHz band, and the 6975-7125 MHz band. Comments will be due 30 days after publication in the Federal Register, which hasn’t yet occurred.

As operators deploy these outdoor links, depending on state and local codes, they will have to obtain approval from state and local authorities. It is no secret that this approval process has often been a source of delay for wireless operators. As we reported in May, the U.S. Supreme Court upheld Commission’s antenna siting shot clock earlier this year. But the scope of a statutory provision adopted by Congress over a year ago designed to ease the deployment of advanced wireless facilities, such as those that may now be used more frequently in the 60 GHz band, has not yet been tested in the courts. Tucked into the Middle Class Tax Relief and Job Creation Act of 2012 (“Spectrum Act”), is a provision that strips local and state governments of authority to deny qualifying wireless tower and base station modifications. Section 6409(a) of the Spectrum Act, codified at 47 U.S.C. § 1455(a), provides that “a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station,” including requests to “collocat[e] new transmission equipment.”

Section 6409(a), on its face, appears to pare back the state and local authority preserved in Section 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. §332(c)(7). Section 332(c)(7) preserved local zoning authority over antenna siting for “personal wireless services” – i.e., commercial mobile wireless services, unlicensed wireless services, and common carrier wireless exchange access services – but bars local and state regulations that discriminate among applicants or have the effect of prohibiting the deployment of such services. Section 6409(a) does precisely the opposite, mandating state and local approval in the face of qualifying facilities modification requests, and not just for “personal wireless services,” but ostensibly for all wireless operations. But significant questions still remain under Section 6409(a) – for example, when does a modification “substantially change the physical dimensions of such tower or base station. Thus far, eighteen months after Section 6409(a) became law, the courts have been silent on its provisions.

In January 2013, the Wireless Telecommunications Bureau offered operators, as well as state and local governments, some informal, non-binding “interpretive guidance” in a Public Notice examining Section 6409(a). In the Public Notice, DA 12-2047, the Bureau stated its “belief” that it is appropriate to interpret the phrase “substantially change the physical dimensions” in Section 6409(a) by looking at the “closely analogous” definition of “substantial increase in the size of the tower” in the Nationwide Collation Agreement the FCC reached with the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers. The Bureau also suggested, looking at several sources, that it would be reasonable to interpret “base station,” as used in Section 6409 to include “a structure that currently supports or houses an antenna transcriber, or other associated equipment . . . in any technological configuration, including distributed antenna systems and small cells.” This guidance is no doubt welcome by providers, but it has only persuasive value at best.

A recent federal court decision is the first to offer any commentary regarding Section 6409, although the court decided the case completely under Section 332(c)(7). Last month, in New Cingular Wireless PCS, LLC a/k/a AT&T v. City of West Haven, et al, No. 11-cv-01967 (D. Conn. Jul. 9, 2013), a federal district court found that West Haven unreasonably discriminated against AT&T when it denied the construction of an antenna on a building that already housed several other antennas. The Court invited briefing from the parties on Section 6409(a) and, although it noted that Section 6409 had no direct application to the matter at hand because it post-dated the local government action, it suggested that the statute “buttressed” the court’s finding against the City under Section 332(c)(7) by providing “further evidence of a clear congressional policy demanding the prompt removal of locally imposed, unreasonably discriminatory obstacles to modifications of existing facilities that would further the rapid deployment of wireless technology . . ..” Apart from finding Section 6409(a) did not have retroactive effect and suggesting that Section 6409(a) embodies the principle of discrimination, despite not using the term, the court offered no further insight how it might interpret Section 6409 more generally. (The Court's failure to conclude that, as AT&T argued, it must apply Section 6409(a) because it was effective as of the date of the Court's decision, did not affect the ultimate outcome in favor of AT&T.)

An optimist might contend that the Bureau’s interpretive guidance in its Public Notice somehow will steer local governments and antenna siting applicants away from the need for court intervention regarding collocation and other eligible modification requests potentially covered by Section 6409(a). Whether the Public Notice has such a conciliatory effect remains to be seen, but it is more likely that further proliferation of wireless deployments, in part the result of the Commission’s action promoting further deployment of unlicensed 60 GHz devices on August 12, will bring these issues before the bench for resolution before long.

At the end of September, the Federal Communications Commission (FCC) took several coordinated steps to enhance the better operation of a spectrum sharing framework adopted several years ago. Terminal Doppler Weather Radars (TDWRs) maintained by the Federal Aviation Administration (FAA) operate at airports in the 5600-5650 MHz band to obtain a variety of data used in real time by aviation operations, such as gust fronts, wind shear, and microbursts. The band is also used by wireless ISPs operating IEEE-802.11a devices on an unlicensed, non-interference basis as part of the Unlicensed National Information Infrastructure (U-NII) framework.

On September 27, the Commission issued an enforcement advisory (Advisory) directed to not just wireless ISPs operating U-NII equipment in the 5600-5650 MHz band, but to manufacturers, retailers, and marketers of U-NII devices. The multi-faceted target audience serves as a reminder that FCC enforcement actions to preserve the viability of sharing frameworks, especially when they involve unlicensed operations, will not be limited to the persons or entities operating the radio devices.

The Advisory reminds operators of U-NII devices in this band that only equipment certified under the FCC’s rules may be used and that equipment must be installed and configured properly, including following the additional steps that must be taken when the devices are within 35 km of a TDWR. Further, users of these devices, like users of all unlicensed devices, need to keep in mind that compliant installation and configuration does not necessarily entitle one to use a certified device under all conditions – the devices must still not cause interference to TDWRs or other licensed services and must accept interference from any source.

The Advisory also served as a reminder that retailers need to ensure that what is on their shelf that must be authorized under the FCC’s rules is, in fact, properly authorized before it goes on the shelves. From the FCC’s perspective, the prohibition against marketing prior to certification falls squarely on retailers, even if importers or distributors may also have regulatory liability. Given the potential for U-NII devices, if not compliant and if not installed or configured properly, to cause harmful interference to operations that support air safety in the vicinity of airports, this is not a matter for retailers to take lightly.

Finally, the FCC reminded manufacturers that their U-NII devices operating in the same band as TDWRs – actually anywhere in the 5.25-5.35 and 5.47-5.725 GHz bands – must meet certain requirements (such as a Dynamic Frequency Selection (DFS) mechanism that users cannot disable, so as to detect the presence of, and avoid co-channel operations with, incumbent federal radar systems) and must provide certain information to the users. And, as noted above, manufacturers (or importers) must certify the devices before they are marketed or offered for sale.

The Advisory cautions users, retailers, and manufacturers that failure of each group to comply with the applicable rules can lead to FCC enforcement action, including substantial monetary forfeitures, seizure of the equipment, and even criminal sanctions, including imprisonment. In that regard, contemporaneous with the Advisory, the FCC issued two enforcement orders against AT&T and Skybeam Acquisition Corporation. In the AT&T Forfeiture Order, the Commission fined AT&T $25,000 for operating a U-NII device incapable of satisfying the DFS requirements and in frequencies outside the authorized range. The FCC issued a Notice of Apparent Liability against Skybeam Acquisition Corporation ordering the company to show cause why it should not be fined $15,000 for operating an uncertified U-NII device on unauthorized frequencies and with DFS functionality disabled. The Commission’s records make clear that there are other investigations ongoing and several other notices of apparent liability pending. While it remains to be seen how many future enforcement actions there will be as a result of uncertified U-NII devices being marketed or non-compliance devices being operated, our readers should be reminded that liability for interfering with the TDWRs may not necessarily be limited to FCC enforcement if air operations are adversely impacted and property damage, injury, or worse results.