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Feature Article
November 2004

The 800 MHz Battle

BY John Cimko

As the dust continues to settle in the wake of the FCC’s effort to solve the public safety communications interference problem in the 800 MHz band, let’s take a look back at what the FCC wrought. Did the agency achieve its goal of coming up with a workable plan to resolve interference that has plagued public safety radio systems? And did the FCC’s solution come at too high a price?

To assess the FCC’s decision, first consider the problem the FCC was trying to solve. The Association of Public-Safety Communications Officials-International (APCO) defined the issue this way: “The fundamental nature of frequency assignments and use in the 800 MHz band is such that nearly every licensee in the band is potentially subject to interference.” APCO says this problem has been getting worse because expansion of commercial cellular systems in the band has dramatically increased the risk of interference.

The problem stems from the fact that public safety and cellular operations are interleaved in the same segments of the 800 MHz band. Band-aid efforts to overcome interference in the interleaved spectrum have been unsatisfactory because, as APCO notes, trying to fix interference problems on a case-by-case basis after they occur simply is not a formula for a long-term solution.

The FCC sized up these issues and decided to think outside the box. Using a plan developed by Nextel and members of the public safety community as a starting point, the FCC came up with a new 800 MHz band plan that separates incompatible technologies. The agency also freed up an additional 4.5 megahertz of spectrum in the 800 MHz band for public safety use. Next, the FCC ensured that, although public safety providers will need to relocate their operations in the 800 MHz band and retune their equipment, they will not bear the costs of doing so.

There is a strong case that the FCC’s solution is likely to succeed. The agency recognized the urgency of interference problems in the 800 MHz band, especially in light of the September 11 terrorist attacks, and its plan will substantially reduce interference in the band, give more spectrum to public safety organizations, and avoid pinning costs on those organizations.

FCC Chairman Michael Powell, who worked successfully to secure a unanimous vote adopting the plan, identified a compelling public interest priority. Police, firefighters, and other first responders should not be crippled by inadequate and unreliable communications or hamstrung by the lack of funding to deal with these problems. The FCC thus fulfilled its statutory mandate of “promoting safety of life and property” by fashioning a workable solution to the 800 MHz problem.

OK. But didn’t the FCC do this by violating federal statutes and giving away the store? The main charge from the agency’s critics is that, as part of the deal, the FCC is giving Nextel 10 megahertz of prime spectrum in the 1.9 GHz band at an undervalued price. They argue that the FCC has ignored its statutory obligation to auction the 1.9 GHz spectrum to the highest bidder. (Verizon Wireless has gone a step further, charging that the FCC’s decision amounted to a criminal violation of appropriations laws. The U.S. Comptroller General has agreed to sort out these allegations.)

If allocating spectrum were strictly a “show me the money” exercise, these critics might have a point, although the FCC argues that its plan places financial obligations on Nextel (including an anti-windfall payment, if necessary) aimed at protecting federal coffers. But the Communications Act gives the FCC authority to allocate spectrum based on public interest considerations that can trump revenue-raising objectives. In fact, the statutory provisions governing spectrum auctions specifically prohibit the FCC from bringing frequency bands into the auction process based on the agency’s revenue-raising expectations.

And the FCC contends that, in any event, it was not under any statutory obligation to designate the 1.9 GHz spectrum for auction. Instead, the agency has discretionary authority under the Communications Act to modify Nextel’s existing licenses in order to swap 800 MHz spectrum for 1.9 GHz spectrum. The agency used this authority to fashion its band reconfiguration plan.

But, even if the FCC had statutory authority, didn’t the agency make a bad policy choice in keeping valuable 1.9 GHz spectrum off the auction block? There is a strong argument that, even if you assume that the FCC’s approach might result in less revenue for the U.S. Treasury, the public still comes out ahead. For one thing, the 800 MHz interference problem exposes public safety operations to serious and palpable risks, and the FCC plan promises an effective solution. That seems to be a prudent policy decision.

In addition, a byproduct of the FCC’s decision could be enhanced wireless service competition. Nextel, which ranks as the smallest of the six national wireless carriers, will be able to use the 1.9 GHz spectrum to extend its current operations and provide next-generation broadband services. Although the FCC was not aiming to boost Nextel’s prospects in the marketplace, it’s hard to see how consumers lose if Nextel can continue to compete against the bigger wireless players. IT

John Cimko served for fifteen years at the FCC, and currently practices law at Greenberg Traurig LLP in Washington, D.C. The views expressed are solely those of the author and should not be attributed to his firm or its clients.

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