After the tragic Amtrak Philadephia accident in May, Amtrak officials blamed the FCC (News - Alert) for Amtrak’s failure to provision positive train control equipment that could have stopped the train before it reached dangerous speeds. Testifying before Congress, Amtrak defended itself by putting the FCC on the line:

"Amtrak attempted to purchase the necessary bandwidth on the open market, but the acquisition proved to be a challenging and time-consuming process, and our several requests to the FCC for a bandwidth allocation out of its inventory were not accepted."

There has been a lot of finger pointing by everyone at everyone including Amtrak, Congress, Democrats, Republicans, and the FCC. Plaintiffs have filed lawsuits accusing Amtrak of “outrageous conduct.” The Senate Commerce Committee held a June hearing on rail safety and heard from the FCC and Amtrak.

Railroad safety and railroad viability are very important, not just for railroad companies but for the American economy and public. According to the Federal Railroad Administration, 140,000 miles of U.S. railroads deliver 40 percent of all national freight compared to trucks on U.S. highways delivering only 28 percent. The train network is just as vital to the U.S. daily economy as airports, electricity, post offices, roads, or the Internet.

The FCC cares deeply about public safety and maintains a strong focus on ensuring that the telecommunications networks, both large and small, are operational at all times. And the FCC disburses more than $8 billion annually in Universal Service Fund fees, with most of it going to maintain infrastructure owned by private rural telephone companies. For public safety nationwide, the FCC is providing both spectrum and $7 billion of funding for the FirstNet LTE (News - Alert) network. With the FCC’s focus and funding directed toward maintaining the nation’s communications infrastructure and the many in-depth FCC hearings and orders focused on public safety, the FCC should have stepped in early in 2010, when first requested by Amtrak, and ensured that Amtrak was provided with the needed PTC spectrum. Instead, the FCC seemed to treat Amtrak as a private commercial spectrum license holder rather than as part of the nation’s vital transportation infrastructure.

Working on its own, starting in July 2010, Amtrak locked down on the 220mHz band for PTC and sought to purchase the spectrum from other license holders on the secondary market. However, Amtrak figured out that there were ownership issues that required solving before a purchase could be finalized. Amtrak then went to the FCC for help. In June 2011, Amtrak requested that the FCC “reallocate, at a minimum, the fallow spectrum” band of 218-219mHz. Amtrak determined that the band was “generally available” and not in use. Amtrak pointed out that reclaiming the spectrum from the licensees would not cause harm because 500kHz was “available for assignment to PTC” in 99 percent of the areas and that a full 1 MHz (1000kHz) was available in 95 percent of the markets. Amtrak asserted that relocation of existing licensees actually using the spectrum would not be “unduly burdensome.” Because the 218-219mHz band seemed to have “very little active operation,” Amtrak recommended that the FCC relocate the license owners to other nearby available spectrum bands.

In July 2012, Amtrak again met with the FCC and laid out the problems of obtaining the spectrum. Rather than step up to the plate and solve the public safety issue, the FCC staff responded that there was no Congressional authorization to provide Amtrak with free spectrum. The FCC encouraged Amtrak to purchase spectrum on the secondary market.

Finally, in late 2014, Amtrak obtained the spectrum on the secondary market. In December 2014, Amtrak filed a request for a waiver of Part 80 rules to implement PTC in the spectrum. Amtrak amended its request on Feb. 25, 2015, and then again on March 2, 2015. Acting expeditiously, the FCC approved the request two days later on March 4, 2015.

Starting in 2008, the FCC began issuing innovative orders allowing for spectrum sharing. The spectrum sharing systems developed by the FCC could have been used to solve the Amtrak problem. The orders addressed the very same TV VHF/UHF spectrum bands where PTC 220mHz is located. The TV White Space database, or Spectrum (News - Alert) Access System, would have been the right system to allocate the needed Amtrak spectrum.

While it is easy to do Monday morning quarterbacking, the FCC may have given up an opportunity to take care of Amtrak’s PTC spectrum needs with a few sentences rationally included for public safety reasons in the TV White Space order. With a thoughtful process, the unused and fallow 218-220mHz band could have been shared and reallocated for the benefit of Amtrak and public safety.

Barlow Keener (News - Alert) is the principal with Keener Law Group.