Legal Matters

Strike while the iron is hot


It's the ninth inning; it's the fourth quarter; we can see the light at the end of the tunnel; it's now or never. No matter what the euphemism, the fact is that the 10th anniversary of the 9/11 terrorist attacks is fast approaching, and there is a huge desire by many federal officials to have D Block reallocation legislation signed by that date.

The Senate Commerce Committee's overwhelmingly supportive vote last month was a huge step toward making the spectrum — and funding for the network that would utilize it — available. A review of the bill (current at presstime) reveals a very thorough piece of legislation that does not require any "give backs" of public-safety spectrum. However, it does require periodic review by the FCC of how that spectrum is being used. Most importantly, the bill gives the FCC latitude to make evaluations and reviews — instead of mandates — on many issues.

Another important provision of the bill moves the public-safety broadband license from the Public Safety Spectrum Trust (PSST) to a to-be-created corporation that represents a joint venture of the federal government and local public-safety officials, with input from the commercial sector. In doing so, it recognizes that this is truly a first-of-its-kind venture.

Something new and different truly is being created here. As a result, there is a good bit of outside-the-box thinking going on. The commercial sector knows how to build and operate a nationwide LTE infrastructure, but it never has had to build a network to public-safety specifications, or make on-the-fly decisions on priority and usage during disasters. Local public-safety officials have never built or operated a nationwide LTE network. They know public-safety communications in their region, but never have seen a totally interoperable system on this geographic scale. And the federal government is accustomed to operating and funding its own networks, but never has helped create such a network for a primary user other than itself.

Many issues still are being worked out: Governance; funding; construction priorities; operational priorities; compatibility testing; economic negotiations; differences between regions that already have received funding and regions that have not; the relationship between the waiver jurisdictions and the new corporation licensee; coverage minimums; location of networking equipment; finding and hardening sufficient sites; and more. A variety of federal and local officials, system integrators, and consultants — many of them volunteers — are working hard to tackle these issues, despite scant funding for these efforts. Everyone is doing their best to contribute what they can when they can.

Can the bill be completed by Sept. 11, 2011? Right now, it's a toss-up. The unknown factor is the House of Representatives. While the bill contains provisions like incentive auctions to make the allocation of the D Block and construction funding revenue-neutral, the fact remains that finding enough House members to vote in favor of the bill by Sept. 11 will be a hard pull. While there's nothing stopping a bill from being completed after Sept. 11, the fact is that much of the political incentive will be gone. So, it is important to strike while the iron is hot. This may require some compromises by public safety, but hopefully those compromises will be minimal.

What do you think? Tell us in the comment box below.

Alan Tilles is counsel to numerous entities in the private radio and Internet industries. He is a partner in the law firm of Shulman Rogers Gandal Pordy & Ecker and can be reached at

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Alan Tilles

Alan Tilles is counsel to numerous entities in the private radio and Internet industries. He is a partner in the law firm of Shulman Rogers Gandal Pordy & Ecker and can be reached at atilles@...
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