The FCC took action on three items at the end of 2004 that will have some significant ramifications for 2005 and beyond. Two are high profile, and one is much less so but important for licensees in the Canadian Border Region.

First, as expected, the FCC released a Sua Sponte order (meaning “on their own motion”) in the 800 MHz proceeding. This order clarified several items from the original 800 MHz order, including: the credit to be applied for the spectrum which Nextel is giving up at 800 MHz; the responsibilities of the Transition Administrator; and interim interference protection requirements during the rebanding process. The Sua Sponte order's provisions are too numerous to detail here, but a copy of the order, as well as a summary, can be found at www.800mhzrebanding.com/resources.html.

With several Petitions for Reconsideration filed by 800 MHz licensees (no petitions were filed by cellular entities), there are still issues to be resolved. However, it would appear that 2005 will mark the beginning of rebanding in earnest.

The second action taken by the commission involves mandatory narrowbanding in the 150 MHz and 450 MHz bands. In December, the commission released a third Report and Order in WT Docket No. 99-87. The basic decision makes the mandatory narrowbanding deadline for both B/ILT and public-safety systems at 150 MHz and 450 MHz Jan. 1, 2013, (the same as before for business and industrial licensees, but five years earlier for public safety). The FCC created a deadline of Jan. 1, 2011, for wideband applications for new systems, as well as for modifications of existing systems, that expand the system's footprint. In addition, the FCC stayed the Jan. 1, deadline for equipment certifications for new wideband equipment (pending further comments in the next stage of the proceeding).

Finally, in the “below the radar” decision, the Wireless Telecommunications Bureau decided to revoke the authority for one of the 150 MHz frequencies licensed to a two-way operator in upstate New York, in the Canadian Border Zone. There are significant problems with timely review of U.S. applications by Canadian authorities. It always takes months to review the applications, and the Canadian rejections of U.S. applications for “interference” reasons are common. For example, we've seen applications rejected by Canada where the applicant is an existing licensee on the frequency, and the licensee only is seeking to change the use of the channel from conventional to trunked operation, with no change of antenna height, frequency or power.

As a result, U.S. applicants, with the FCC's blessing, began to file their applications specifying 5 W ERP. While limiting the effective range of the system, by law it prevented the application from needing to be sent to Canada for coordination. The downside is that these operations are licensed on a secondary basis to Canadian operations. Perhaps hundreds of these licenses have been issued.

In one case, Canadian officials complained to the FCC about interference on one of the frequencies from a 5 W operation. Allegedly, the interference was going to affect the expanded operations of a co-channel Canadian utility. The FCC visited the site and concluded that it was operating properly. The licensee continuously monitored the frequency and determined that the Canadian utility wasn't even on the air with their existing facilities.

Even though the complaint was about potential interference to operations that don't presently exist, the commission still revoked the authorization.

On this basis, I'd like to recommend to those folks in the region not to rely on their present 5 W authorizations. If the commission revokes authorizations just because someone in Canada is having a bad day, none of these authorizations are safe. On the other hand, I understand the frustration of having to wait for Canada to go through their approval process (or the ridiculous rejections).

My recommendation is as follows: continue to apply for the 5 W authorizations, in order to get on the air rapidly; and upon receipt of the 5 W license, file an application for a new license (not a modification) for the higher ERP. This approach will permit immediate operations, with the hope of having non-secondary operations later. Further, I recommend that impacted licensees, instead of fighting the fight individually, seek out the trade association of their choice and jointly expend the political and financial capital to make a change. Nextel wouldn't accept such treatment by the FCC and Canada, and you shouldn't either.


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