An FCC proposal calling for a public-private partnership on 700 MHz spectrum already earmarked for public-safety use exceeds the commission’s legal authority, RCC Consultants stated in comments recently filed with the FCC.

In its ninth notice of proposed rulemaking (NPRM) in the 700 MHz proceeding, the FCC proposed that 12 MHz of public-safety spectrum currently would be licensed to a national public-safety broadband licensee, which would lease the airwaves to commercial operators to build a broadband network. In addition to serving public-safety needs, the network could be used to offer commercial services when public safety is not using the spectrum.

Many industry observers have questioned the economics and logistics associated with such a shared network, but RCC contends the proposal would be illegal under current law. By statute, public-safety spectrum must be licensed to “a state or local government entity” or “a nongovernmental organization authorized by a government entity whose primary mission is the provision of public-safety services,” RCC states in its filing.

The FCC’s proposal to license the spectrum to a public-safety broadband trust does not meet this requirement, said Carl Aron, executive vice president of RCC Consultants.

“If you picked some non-profit organization [as the licensee for the spectrum], it would not qualify as a state or local government, and there is no expectation in the 9th NPRM that state and local governments would authorize that entity,” Aron said during an interview with MRT.

Traditionally, securing such authorizations has been “difficult,” and the authorizations can be pulled at any time, Aron said. Getting all governmental entities to authorize a national broadband trust likely would be unwieldy, and it would only take a few holdouts to undermine the entire effort.

“Authorization would not provide a firm basis for a commercial entity to spend the money [to build and maintain a broadband network],” Aron said.

Aron said the governing statute also prohibits commercial use of public-safety spectrum, which he described as a “show stopper” for the notion of a public-private partnership utilizing the airwaves. He also questioned whether the proposal’s notion to let the trust conduct secondary operations on the 12 MHz of public-safety narrowband spectrum should become policy when the enabling technology is not commercially available.

Comments on the FCC proceeding are due Feb. 26. The reply-comment period will close on March 12.

Structurally, the FCC proposal is similar to the much-discussed plan submitted by Cyren Call Communications, but the spectrum to be utilized is different. While the FCC plan would use for 700 MHz spectrum already allocated to public safety, Cyren Call—led by former Nextel Communications co-founder Morgan O’Brien—advocates using 30 MHz of spectrum in the 700 MHz band that scheduled to be auctioned to commercial operators early in 2008.

Sen. John McCain (R-Ariz.) has announced that he will sponsor enabling legislation for a public-private network on the spectrum sought by Cyren Call. Beltway sources have said they believe McCain will introduce the legislation in early March.